Chapter V

IMPLEMENTING THE GENERAL PLAN

the day-to-day actions of local governments truly shape the community.

Thus, the manner in which a local government implements its plan

is the real test of its commitment to the goals, objectives, policies,

and programs in the general plan.

Zoning

INTRODUCTION

Once a local government has adopted its general plan, local ofcials must implement it (Government Code Section 65103(c)). This chapter describes many, but not all, of the numerous plan implementation tools available to cities and counties. These implementation measures should be tailored to operate effectively given the unique local circumstances of each jurisdiction.

Most implementation methods derive from a local government's corporate and police powers. State law requires cities and counties to have subdivision and building regulations and open space zoning, while most other measures are adopted at local option. If the goals and objectives of the general plan are to be served effectively, the implementing measures must be carefully chosen, adapted to local needs, and carried out as an integrated program of complementary and mutually reinforcing actions. At the same time, they must be used to achieve results that are consistent with the general plan. This chapter discusses many of the more frequently used tools and how they relate to the general plan.

ZONING

The California Supreme Court has stated that "zoning is intended to represent a considered, specic, and lasting implementation of the broad statements of policy of the general plan" (United Outdoor Advertising v. Business, Transportation and Housing Agency (1988) 44 Cal.3d 242). The typical local zoning ordinance regulates land use by dividing the community into districts or "zones" and specifying the uses which are to be permitted and/or prohibited within each district. Land uses of compatible intensity are grouped together and obnoxious or hazardous uses are usually separated from residential areas. A text and map(s) describe the distribution and intensity of land uses in such categories as residential, commercial, and industrial. Written regulations establish standards for minimum lot size, building height and setback limits, fence heights, parking, and other development parameters within each land use zone.

In contrast to the longterm outlook of the general plan, zoning focuses on the immediate uses of land. It is based on the "police power" delegated to cities and counties by the California Constitution. In addition, state law sets forth minimal standards which local agencies must observe in their practices (Government Code Sections 65800 et seq.). The following paragraphs discuss zoning, exibility in zoning, zoning consistency, and some of the statutes related to zoning. In general, state zoning laws do not apply to charter cities, although most have adopted similar standards and procedures (Government Code Section 65803).

Typically, a zoning ordinance permits certain uses by right in each zone and other uses upon approval of a conditional use permit (CUP). The CUP procedure allows a local government to review and place conditions on individual projects which might otherwise have undesir able effects upon an area and to deny uses deemed incompatible. The local government will dene the scope of applicability of conditional use permits within its jurisdiction. It may not, however, place conditions on the approval that are not reasonably related to the use being approved.

Similarly, most zoning ordinances authorize "variances" that waive the application of development standards under special circumstances. Pursuant to Government Code Sec tions 65906 and 65906.5 a county or general law city may approve a variance only where: (1) special circumstances exist with regard to the size, shape, topography, location or surroundings of the property such that a strict application of the ordinance would deprive the landowner of rights enjoyed by other property owners in the vicinity and under the same zoning classication; (2) the variance has been made subject to conditions ensuring that its approval will not constitute a grant of special privilege inconsistent with the limitations on similar properties; and (3) the variance does not authorize a use or activity which is otherwise disallowed in the particular zone. For those interested in an indepth discussion of variances, Orinda Association v. Contra Costa County (1986) 186 Cal.App.3d 1145 is an excellent reference.

FLEXIBILITY IN ZONING

The following are examples of exible zoning. These are not really new, but they represent departures from the strict view of "Euclidean" zoning. These concepts are commonly used in order to tailor zoning to a community's special needs.

· Overlay zone: an additional level of regulation superimposed upon existing zoning in specied areas. Subsequent development must comply with the requirements of both the overlay zone and the base district. Historical districts and oodhazard regulations are common examples of overlay zones.

Implementation Of The General Plan

Each planning agency shall perform all of the following functions:

· Implement the general plan through actions including, but not limited to, the adminis tration of specic plans and zoning and subdivision ordinances.

· Annually review the capital improvement program of the city or county and the local public works projects of other local agencies for their consistency with the general plan, pursuant to Article 7 (commencing with Section 65400).

(Government Code Sections 65103 (b) and (c))

After the legislative body has adopted all or part of a general plan, the planning agency shall do both of the following:

(a) Investigate and make recommendations to the legislative body regarding reasonable and practical means for implementing the general plan or element of the general plan, so that it will serve as an effective guide for orderly growth and development, preservation and conservation of openspace land and natural resources, and efcient expenditure of public funds relating to the subjects addressed in the general plan.

(b) Provide an annual report to the legislative body on the status of the plan and progress in its implementation.

(Government Code Section 65400)

ZONING

Examples Of Tools For Implementing The General Plan

Corporate Powers (Acquisition and Development)

· Construction of streets, roads, and water and sewage treatment facilities

· Acquisition and development of parks

· Acquisition of sites for low and moderateincome housing

· Acquisition of development rights and openspace, conservation, or scenic easements

· Creation of Williamson Act contracts

· Creation of development corporations

· Land banking

· Timberland Productivity Zone contract execution

Others

· Redevelopment

· Intergovernmental coordination

· Public information

· Data management

· Monitoring

· Development agreements

· Economic development

Police Powers (Regulatory)

· Specic Plans

· Zoning

· Subdivision regulations

· Park dedication requirements

· School dedication requirements

· Review and regulation of public works

· Housing and building regulations

· Code enforcement

· Environmental review procedures

· Design review

· Floating zone: a district described in the zoning ordinance, but not given a specic location on the zoning maps until a property owner or developer applies for it. Planned Unit Development (PUD) zoning is a common example of a oating zone.

· Cluster zoning: a district which allows the clustering of structures upon a given site in the interest of preserving open space. Cluster zones typically set an allowable density and minimum openspace requirement to encourage the clustering of structures.

· Planned unit development (PUD) zoning: a type of oating zone designed to provide exibility in project design and standards. It is usually characterized by comprehensive planning of site development, clustering of structures, and a mixture of housing types and land uses.

· Mixeduse zoning: a technique for combining three or more land uses in a single structure or project. It is typically used for ofce/commercial/highdensity residential projects such as San Francisco's Embarcadero Center.

Zoning

Open Space and TPZ Zoning

Surplus School Sites

Pre-Zoning

· Inclusionary zoning: the establishment of incentives (e.g., density bonuses) or standards encouraging or requiring construction of units for low and moderate-income residents.

· Design review: required review of project design and/or architectural features for the purpose of ensuring compatibility with established standards. It is often used in historic districts (as in Sonora) or areas that have a distinct character worthy of protection (as in Mill Valley).

· Transfer of development rights (TDR): a device by which the development potential of a site is severed from its title and made available for transfer to another location. The owner of a site within a transfer area retains property ownership, but not approval to develop. The owner of a site within a receiving area may purchase transferable development credits, allowing a receptor site to be developed at greater density. The California Coastal Commission has used this technique to "retire" antiquated subdivisions in environmen tally sensitive areas.

· Performance zoning: an alternative to Euclidean zoning which correlates the allowable type and intensity of development to the fulllment of specic performance standards. Intensity standards may include building density, oor area ratio, impermeable coverage ratio, and open-space ratio. A local government using performance zoning has fewer zoning districts than other jurisdictions, allows greater land use exibility without resorting to variances, and must have an understanding of how land uses affect their environs.

Performance zoning has been used successfully in Colorado, Florida, Pennsylvania, and Illinois and is described in detail in the American Planning Association book of the same title. As of this writing, no California community is exclusively using performance zoning to regulate land uses.

ZONING-RELATED STATUTES

Although local governments have broad discretion in zoning matters, there are a number of state requirements that directly relate to zoning. The following paragraphs summarize most of the requirements that apply to general law cities and counties.

· Government Code Section 65910 specically requires the adoption of openspace zoning in conjunction with the openspace element of the general plan. The Timberland Productivity Act of 1982 (Government Code Sections 51100 et seq.) requires local governments with qualifying timberlands to adopt a Timberland Productivity Zone (TPZ) ordinance and to zone qualifying timberlands accordingly.

· School districts may request the rezoning of certain surplus school sites (Government Code Section 65852.9). The city or county must then zone the site consistently with the local plan. The local government may not rezone surplus school sites to open space, recreational or park uses unless surrounding lands are similarly zoned or the school district agrees to the rezoning.

· Government Code Section 65859 allows a city to prezone unincorporated territory adjoining it. Prezoning, although it has no regulatory effect until the property is annexed, is subject to the requirements applicable to zoning in the city, including the requirement for consistency with the general plan. A local agency formation commission (LAFCO) may require prezoning as part of the annexation approval process.

· Cities and counties may enact interim ordinances prohibiting uses which may conict with a contemplated general plan, specic plan or zoning proposal (Government Code Section 65858). Interim zoning may be imposed for an initial period of 45 days and extended for up to two years. It can be used effectively when the general plan is being revised or when major rezonings are being undertaken in order to achieve general plan consistency. Local governments, however, should exercise caution when imposing land use controls or moratoriums, even if they are only temporary. Excessive restrictions may constitute a regulatory taking entitling affected landowners to just compensation. City and county ofcials should consult with their legal counsel to determine which types of development controls require compensation. Just because a regulation restricts land uses may not mean it is a taking.

· Local governments must consider the effects of proposed ordinances on regional housing needs and balance them against the availability of public services, scal resources, and environmentally suitable sites. Zoning ordinances limiting the number of new housing units must contain ndings regarding the public health, safety, and welfare which justify reducing regional housing opportunities (Government Code Section 65863.6). In addition, pursuant to Government Code Section 65913.1 the local government must zone a sufcient amount of vacant land for residential use to maintain a balance with land zoned for nonresidential use and to meet the community's housing needs as projected in the housing element.

· Cities and counties may not preclude the installation of manufactured homes on permanent foundations on lots zoned for singlefamily residences (Government Code Section 65852.3). Additionally, a mobilehome park is a permitted use on all land planned and zoned for residential use provided that the local government may require prior approval of a use permit.

· Two provisions of law promote the construction of second units on developed residential lots. These may be units for the elderly pursuant to Government Code Section 65852.1 ("granny ats") or those built pursuant to Government Code Section 65852.2. In the absence of an ordinance making specic ndings, the local government may not totally prohibit second units.

· Local governments must provide incentives to developers proposing to include low and very lowincome housing in their projects. In return, the developer must reserve these units for this purpose for at least 30 years.

Government Code section 65913.4 provides that local governments must provide a density bonus and at least one other regulatory incentive when a developer proposes to reserve at least 20 percent of the units in the development for low income residents. This section does not specify the minimum density bonus which must be offered.

Pursuant to section 65915 of the Government Code, concessions including a density bonus and at least one other incentive must be granted by ordinance when specic percentages of the total amount of housing are set aside for low- or very low-income residents. Incentives may include a reduction in site development standards or approval of mixed use zoning. A project approved under these sections may exceed the density limits of the applicable zoning and general plan by up to 25 percent. For more information on density bonuses, see State Density Bonus Law (1990), available from the California Department of Housing and Community Development, Division of Housing Policy Development.

Interim

Ordinance

Regional Housing Needs

Manufactured Housing

Granny Flats and Second Dwellings

Inclusionary Incentives

Care Facilities

Subdivision Map Act

· State approved residential care facilities for six or fewer mentally disordered or handi capped people or dependent and neglected children must be allowed in all residential zones, including singlefamily residential zones (Welfare and Institutions Code Section 5116).

ZONING CONSISTENCY

The requirement for zoning consistency applies to counties, general law cities, and charter cities with a population of more than two million (Government Code Section 65860). Charter cities are exempt from the zoning consistency requirement unless their charters provide otherwise. An in-depth discussion of zoning consistency may be found later in this chapter's section on Consistency in Implementation.

SUBDIVISION REGULATIONS

The process of subdividing land has a profound inuence on the development of the community. It can positively affect the community by promoting economic development and the achievement of such social goals as housing for all segments of the community or it can have a negative impact by promoting urban sprawl, unnecessarily increasing service costs, and removing open space. A local government's approval of a nal subdivision map will have a long - term effect on land use patterns. Once a subdivision is approved and developed, it is difcult for a city or county to change the established parcel boundaries.

Land cannot be subdivided in California without local government approval. Dividing land for sale, lease or nancing is regulated by local ordinances based on the state Subdivision Map Act (commencing at Government Code section 66410). The local general plan and subdivision ordinance govern the design of the subdivision, the size of its lots, and the types of improvements that will be required as conditions of approval.

There are basically two kinds of subdivision: parcel maps, which are limited to divisions resulting in four or fewer lots (with certain exceptions), and nal or tract map subdivisions, which create ve or more lots. Local ordinances generally apply less stringent development standards to parcel maps than to tract maps.

Subdivision regulation, like zoning, is an exercise of police power and a principal instrument for implementing the general plan. The Subdivision Map Act (Government Code Sections 66410 et seq.) establishes statewide uniformity in local subdivision procedures, but generally leaves the standards for regulating the design and improvement of subdivisions to local government.

The Map Act gives cities and counties broad authority to regulate design and improvement of subdivisions and to require dedications of public improvements or in-lieu fees. The Act also requires that proposed subdivisions must be found to be consistent with the general plan before they can be approved.

SUBDIVISION REGULATIONS

First, the Map Act authorizes cities and counties to regulate the design and improvement of subdivisions (Government Code Section 66411). The authority to impose design and improvement standards, when such standards are consistent with the general plan, represents a powerful tool. This includes authority to approve and design street alignments, grades and widths, drainage and sanitary facilities, lot size and conguration, trafc access, and other measures "as may be necessary or convenient to insure consistency with, or implementation of the general plan." (Government Code Sections 66418 and 66419)

Second, the Map Act authorizes local governments to require dedications of public improvements or the payment of in-lieu fees for:

· Streets, alleys, drainage, public utility easements, and public easements (Government Code Section 66475);

· Bicycle paths (cannot be required unless the subdivision contains 200 or more parcels) (Government Code Section 66475.1);

· Local transit facilities, such as bus turnouts, benches, shelters, and landing pads (applies to subdivisions with 200 dwelling units or more or 100 acres or more) (Government Code Section 66475.2);

· Parks and recreational facilities if the city's general plan or specic plan contains policies and standards for park and recreation facilities (Quimby Act Government Code Section 66477);

· School sites (this is actually a reservation with a right to purchase at a later date) (Government Code Section 66478);

· Access to waterways, rivers, and streams (Government Code Section 66478.11);

· Access to coastline or shoreline (Government Code Section 66478.11);

· Access to public lakes and reservoirs (Government Code Section 66478.12);

· Drainage and sanitary sewer facilities (Government Code Section 66483); and

· Bridges and major thoroughfares (Government Code Section 66484).

The third and broadest opportunity for regulating subdivisions lies in Government Code Sections 66473.5, 66474, and 66474.61. Section 66473.5 species that no city or county shall approve a tentative subdivision map (or parcel map not requiring a tentative map) unless the decision-making body nds that the subdivision, together with design and improvement provisions, is consistent with the general plan or any applicable specic plan.

Sections 66474 and 66474.61 require denial of a subdivision if the local government nds that: (1) the proposed subdivision map is inconsistent with the applicable general and specic plans; (2) the subdivision's design or improvement is inconsistent with the applicable general and specic plans; (3) the site is physically ill-suited for either the type or proposed density of development; or (4) the subdivision's design or types of improvements are likely to cause substantial environmental damage, substantially and avoidably injure sh or wildlife or their habitat, or cause public health problems.

California case law and statutes require local governments to make written ndings of fact supported by substantial evidence on each of these matters when deciding upon a subdivi sion. In 1985 the Legislature adopted a measure which authorized local agencies, regardless of a nding made under the Subdivision Map Act, to approve a project causing environmental damage, provided that, (1) an environmental impact report was prepared, and (2) ndings were made by the agency that overriding considerations make mitigation measure or project alternative infeasible (Government Code Section 66474.01).

Local governments have extensive authority to implement not only their physical develop ment plans, but also policies of a social and economic nature. Thus, a city or county may require that a residential development include units for low and moderate-income house holds in accordance with its housing element policies. A local government can also require a subdivider to use cluster development if the general plan has appropriate open-space and land use policies.

Given rising municipal and development costs, local governments recognize the importance of using the police power to impose conditions of approval that fulll general plan objectives as well as meet the public needs created by or related to a subdivision project. For example, a jurisdiction may require specic re ow standards or brush clearance in areas with high re hazards identied in its general plan and addressed by re protection planning policies.

A concrete example of a city's exercise of its police power was demonstrated in Soderling v. City of Santa Monica ((1983) 142 Cal.App.3d 501, 506), in which a city required smoke detectors even though its subdivision ordinance didn't specically call for them. The city's general plan, however, did contain an objective to "promote safe housing for all," which the court recognized and used as a basis to uphold the smoke detector requirement. Such authority is a powerful tool for obtaining exactions to fulll general plan goals and objectives and meet public needs.

Before any property is subdivided, a local agency must approve both a tentative and nal map of the subdivision. The nal map must be led with the local agency before the tentative map expires.

Government Code Section 66474.1 species that a local agency must approve the nal or parcel map if it nds that it is in substantial compliance with the approved tentative map. Under case law approval of the nal map was determined to be a ministerial project even if the general plan and zoning have changed since the tentative map's approval ( Youngblood v. Board of Supervisors of San Diego County (1978) 22 Cal.3d 644).

Vesting tentative maps are also worth noting. When a subdivider receives city or county approval of a vesting tentative map, he or she also obtains a limited vested right to develop the subdivision in substantial compliance with the local plans and regulations in effect when the map application was deemed complete. If, however, a local agency has formally initiated proceedings to amend applicable plans or regulations prior to the application being deemed complete, the amendments, if adopted, will apply to the vesting map.

In addition, the local agency may condition or deny building permits for parcels created under a vesting tentative map if the agency determines that: (1) a failure to do so would threaten community health or safety, or (2) the condition or denial is required by state or federal law. The vesting tentative map law applies to all subdivisions, including commercial and industrial tracts.

Although condominium and stock cooperative conversions technically divide air space, they are, nevertheless, subject to the Subdivision Map Act. While conversions can increase the number and variety of homeowner units in a community, they also displace tenants and reduce the housing supply for lowerincome people. For these reasons, conversions have been controversial.

The California Supreme Court has upheld a local agency's authority to limit rental conversions in a situation where the supply of rental housing was threatened. In that decision, Grifn Development Co. v. City of Oxnard (1985) 39 Cal.3d 256, the court determined that Oxnard's stringent condominium conversion ordinance was enforceable because its provi sions were reasonably related to a legitimate government purpose, such as maintaining a good supply of rental space.

SPECIFIC PLANS

A speciFIc plan is a tool for the "systematic implementation" of the general plan. It may be applied to all or a portion of the area covered by a general plan. Any interested party may request the adoption, amendment or repeal of a specic plan. While a plan may be prepared by either the public or private sectors, plan adoption, amendment and repeal are the responsibility of the local legislature. As a legislative act, however, a specic plan is subject to the referendum and initiative processes.

At a minimum, a specic plan must include a statement of its relationship to the general plan (Government Code Section 65451(b)) and a text and diagram(s) specifying all of the following in detail:

· The distribution, location, and extent of the uses of land, including open space, within the area covered by the plan.

· The proposed distribution, location, and extent and intensity of major components of public and private transportation, sewage, water, drainage, solid waste disposal, energy, and other essential facilities proposed to be located within the area covered by the plan and needed to support the land uses described in the plan.

· Standards and criteria by which development will proceed and standards for the conservation, development, and utilization of natural resources, where applicable.

· A program of implementation measures including regulations, programs, public works projects and nancing measures necessary to carry out the provisions of the preceding three paragraphs (Government Code Section 65451(a)).

These requirements are general and enable a local government to select from a wide range of land use criteria and implementation programs. Specic plans may also address any other subject which in the judgment of the planning agency are necessary or desirable for general plan implementation (Government Code Section 65452).

SPECIFIC PLANS

Regulatory Plans

CEQA Exemption

Consistency

Procedure

Such exibility allows a community to assemble, in one package, a set of land use specications and implementation programs tailored to the unique characteristics of a particular site. Therefore, specic plans are especially useful for sites with major environmen tal and scal constraints.

A fundamental question regarding specic plans is whether they are regulatory or policy documents or both. A review of the specic plan statutes does not provide a clear answer. However, specic plans adopted by ordinance are more regulatory than those adopted by resolution.

A regulatory specic plan, with its characteristic exibility, would have certain advantages over zoning under some circumstances. A community's control of development phasing provides a good example. The regulatory effects of zoning are immediate while the provisions of a general plan are longterm. If a general plan's implementation is limited to zoning, it may be difcult for a city to phase a longterm development so that it meets the general plan's development objectives. A series of zone changes, including the use of holding zones, may be required; whereas, the one time adoption of a specic plan can easily resolve the problem. Along with specifying land uses, a regulatory specic plan could stipulate development timing by means of a phasing program.

The advantages of a specic plan are not limited to those inherent in its exibility. Residential development projects are exempt from the California Environmental Quality Act if they implement and are consistent with a specic plan for which an environmental impact report (EIR) or supplemental EIR has been prepared (Government Code Section 65457). Hence, application processing times should be reduced for residential projects, including subdivi sions and rezonings.

In addition to saving time, a specic plan can reduce development costs. For example, a specic plan's land use specications in combination with its capital improvements program eliminates uncertainties as to future utility capacities. Developers can avoid costly oversizing.

In light of these benets, it is important to note that specic plans may not be imposed arbitrarily. They must be consistent with their jurisdiction's general plan (Government Code Section 65454). In turn, zoning ordinances, subdivisions (including tentative tract and parcel maps), public works projects, development agreements and land projects (dened in Business and Professions Code Section 11000.5) must be consistent with any applicable specic plans (Government Code Sections 65455, 66473.5, 66474(a), 66474.5(b), 66474.61(a), and 65867.5). A local agency may not approve a nal subdivision map for a land project unless the agency has rst adopted a specic plan covering the project area (Government Code Section 66474.5(a)).

Furthermore, a special district, school district or agency created by a joint powers agreement may not carry out its capital improvement program (prepared pursuant to Government Code Section 65403) if the program (or a part of it) is found to be inconsistent with a general or specic plan of an affected city or county. A district or local agency, however, may overrule the nding and carry out the program (Government Code Section 65403(c)).

A specic plan is prepared, adopted and amended in the same manner as a general plan, except that it may be adopted by resolution or ordinance and it may be amended as often as deemed necessary by the local legislature (Government Code Section 65453(a)). A specic plan is repealed in the same manner as it is amended (Government Code Section 65453(b)).

To defray the cost of specic plan preparation, a city or county may impose a fee upon persons whose projects must be consistent with the plan. The fee must be prorated according to the benet a person receives from the specic plan (Government Code Section 65456).

DEVELOPMENT AGREEMENTS

A city or county participating in a development agreement promises, for a specied time period, not to change certain rules, regulations, and policies applicable to a development. This gives developers, who have yet to attain a vested right to develop, a degree of assurance that their investment in project preparations will not be nullied by some future local policy or regulation change (e.g., the rezoning of a commercial project site to residential). In exchange for the privilege of a regulation "freeze," the developer may be willing to agree to certain concessions.

For example, in carrying out an agreement project, the developer might provide extra affordable housing, open space, or public facilities. Although not yet tested in the courts, such concessions may possibly exceed normal exaction limitations based on the viewpoint that development agreements are contracts rather than police power enactments. Thus develop ment agreements are a potentially useful means of attaining general plan objectives while removing some of the nancial risks faced by developers.

Cities or counties have the option of entering into development agreements with persons having legal or equitable interest in real property within their jurisdictions. A city may also enter into a development agreement with any person having legal or equitable interest in real property in unincorporated territory within that city's sphere of inuence.

In the latter case, however, the agreement will not be operative unless proceedings annexing the property to the city are completed within the period of time specied by the agreement (Government Code Section 65865). If territory covered by a county development agreement becomes part of a newly incorporated city or is annexed by a city, the agreement will be valid for its original duration or eight years from the date of incorporation, whichever is earlier. See Government Code Section 65865.3 for criteria applicable to these particular types of development agreements.

Development agreements must specify: (1) the duration of the agreement, (2) the permitted uses of property, (3) the density or intensity of use, (4) the maximum height and size of proposed buildings, and (5) the provisions for reservation or dedication of land for public purposes. (Government Code Section 65865.2).

In addition, development agreements may: (1) include the conditions, terms, restrictions, and requirements for subsequent discretionary actions; (2) provide that such stipulations shall not prevent development of the land with regard to the uses, densities, and intensities set forth in the agreement; (3) specify the timing of project construction; and (4) set forth the terms and conditions relating to applicant nancing of necessary public facilities and subsequent reimbursement over time.

Procedure

Required Contents

Optional Contents

Limitations

Specifications

Duration

Legality

Although development agreements "freeze" local land use regulations and policies, the developers who sign these contracts are not necessarily "home free" with regard to project entitlements. Government Code Section 65866 states in part that:

A development agreement shall not prevent a city, county, or city and county, in subsequent actions applicable to the property, from applying new rules, regula tions, and policies which do not conict with those rules, regulations, and policies applicable to the property as set forth herein, nor shall a development agreement prevent a city, county, or city and county from denying or conditionally approving any subsequent development project application on the basis of such existing or new rules, regulations, and policies.

For the sake of clarity, therefore, it is important that local governments stipulate which existing rules, regulations and policies will be "frozen" by an agreement. (Note that Government Code Section 65866 commences with the phrase, "Unless otherwise provided by the development agreement . . . .") In the absence of such specication, all development rules, regulations, and ofcial policies noted in Government Code Section 65866 that are in force upon the execution of an agreement will be "frozen." This could result in unanticipated consequences for both a developer and a city or county.

It is also important that local ofcials know exactly how property under an agreement is going to be developed so they can avoid agreeing to an inadvertent forfeiture of their powers to control a development's impacts. A detailed specic plan prepared and adopted prior to an agreement could specify the development details for a site, including the regulations and policies that would apply under the agreement. Specic plan preparation would also facilitate further citizen participation in planning a development. The City of Moreno Valley has used development agreements to facilitate specic plan implementation.

In addition to carefully examining development details, local governments should exercise caution in specifying the duration of agreements. An agreement for less than a year probably would not afford a developer enough protection. On the other hand, the freezing of development regulations for many years may involve too many unknowns. An excessive agreement duration could impair a local government's response to community concerns and needs that change over time. Many cities have entered into agreements ranging in length from fteen to twenty years.

Cities and counties should also be aware that the courts have not yet determined the constitutionality of development agreements. According to one viewpoint, development agreements unconstitutionally tie the hands of future local legislators by "contracting away" their police power to regulate land use. A 1986 appellate case, though not concerned with development agreements, nevertheless lends support to this argument. In Delucchi v. County of Santa Cruz (1986) 179 Cal.App.3d 814, the California Court of Appeal, Sixth District, held that an agricultural preserve contract prohibiting the county from changing zoning ". . . would be invalid as an attempt by the county to surrender its future right to exercise the police power."

Those who advocate the constitutionality of development agreements argue that such enactments are legitimate exercises of the police power. Some supporters even suggest that development agreements are contracts protected from impairment under the federal contract clause. Because of these and other unresolved legal questions city attorneys and county counsels should assist in preparing development agreements.

CAPITAL FACILITIES

CAPITAL FACILITIES

The network of publicly owned facilities, such as streets, water and sewer facilities, public buildings, and parks form the internal framework of a community. The timing and pattern of installing capital improvements will play a part in implementing the general plan by affecting land use distributions. Although capital facilities are built to accommodate present and anticipated needs, some (most notably water and sewer facilities and roads) play a major role in determining the location, intensity, and timing of development. For instance, the availability of sewer and water connections can have a profound impact upon the preserva tion of agricultural or openspace lands.

The general plan should identify existing capital facilities and it should also project the need for improvements. The circulation element is the most obvious locale for addressing infrastructure issues, but it is not the only element where capital improvements come into play. For example, the housing element must include an implementation program that, among other things, identies adequate sites for various housing types based in part on public services and facilities.

The safety element must "address evacuation routes, peakload water supply requirements, and minimum road widths . . . as those items relate to re and geologic hazards." The land use element must discuss, among other things, education-related land uses, open space for recreation, public buildings and grounds, and solid and liquid waste disposal facilities. The open space element may consider "Open space for outdoor recreation, including . . . areas particularly suited for park and recreation purposes . . . ." It may also address open space areas for protecting water quality and for water reservoirs.

The conservation element must consider the development and utilization of waters and harbors and it may address ood control. Furthermore, "That portion of the conservation element including waters shall be developed in coordination with any countywide water agency and with all district and city agencies which have developed, served, controlled or conserved water for any purpose for the county or city for which the plan is prepared."

Indeed, among the statutory functions of the planning agency is to, "Annually review the capital improvement program of the city or county and the local public works projects of other local agencies for their consistency with the general plan . . . ." (Government Code Section 65103(c)). Local governments may underscore their interest in public services and facilities by adopting an optional public facilities element (Government Code Section 65303).

Each year, all departments within the city or county and all other local governmental agencies (including cities, counties, school districts, and special districts) constructing capital facilities must submit a list of proposed projects to the planning agency (Government Code Section 65401). The city or county planning agency with jurisdiction over the area must then review the projects for conformity with the general plan.

In lieu of considering individual projects or only those projects to be undertaken in a single year, most cities and counties prepare and annually revise capital improvement programs (CIPs) which cover a four to seven year period. The CIP makes projections regarding annual expenditures for acquisition, construction, rehabilitation, and replacement of public build

Discussion in the General Plan

Capital

Improvement Programs

Building and housing codes

Federal Interest

Regional Aspect

In rapidly developing areas, a CIP coordinated with a general plan can help shape and time growth according to adopted policies. In an older city with a declining tax base and a deteriorating capital plant, a CIP can help stimulate private investment or stabilize and rehabilitate older neighborhoods by demonstrating a public commitment to the provision of key public facilities on a predetermined schedule.

Many federal grant programs, including the Clean Air Act, the Water Pollution Control Act Amendments, the Housing and Community Development Act of 1974, the Public Works and Economic Development Act of 1976, and the National Historic Preservation Act of 1966, now require or encourage the consistency of federally assisted capital projects with local, regional, and state plans. For example, federal law (Section 176 of the Clean Air Act) requires that the population projections used in planning capital facilities conform to the assumptions contained in the regional air quality management plan adopted as part of the State Implementation Plan (SIP) when federal funding or approval is sought. The federal government will not support projects which fail to comply with the SIP and gives priority to implementing those programs which conform to the SIP. Clearly, it behooves local government to review regional and state plans and to incorporate applicable assumptions and projections into the local general plan.

Capital improvements are also important in a regional sense. The growing interrelatedness of planning issues among local governments applies directly to local capital improvement projects. The location of major roads, sewer facilities, water trunk lines, and emergency service buildings within the city or county can affect surrounding communities by encour aging or deecting the direction of growth.

Thus local decisions regarding capital improvements may substantially inuence the planning assumptions and projections of neighboring communities. This is another reason why it is important for local governments to coordinate their general plans with the plans of their neighbors.

BUILDING AND HOUSING CODES

The community's building and housing codes implement the land use, housing, noise, and safety elements. Local building and housing codes, like zoning and subdivision regulations, are adopted by ordinance as an exercise of police power for the protection of the health, safety, and welfare of the public.

Building and housing codes establish minimum standards and specications for structural soundness, safety, and occupancy. They have their greatest effect on new construction and rehabilitation, but certain parts of the codes apply to the use, maintenance, change in occupancy, and public health and safety hazards of existing buildings.

Building and housing codes

The State Housing Law (Health and Safety Code Sections 17910 et seq.) strives for statewide uniformity by requiring cities and counties to adopt regulations imposing substantially the same requirements as those contained in the various uniform industry codes: the Uniform Housing Code, the Uniform Building Code, the Uniform Plumbing Code, the National Electrical Code, and the Uniform Mechanical Code. The State Housing Law applies to buildings such as apartments, hotels, motels, lodging houses, factorybuilt housing, and dwellings, but not to mobile homes.

In addition to meeting the requirements imposed by the state housing law, local codes must also comply with other state requirements applicable to a broader range of buildings. These include requirements for re safety, noise insulation, soils reports, earthquake protection, energy insulation, and access for the physically handicapped.

State law does allow some exibility in establishing local standards and procedures. For example, when adopting the uniform codes under the State Housing Law, a city or county can make such changes "as it determines . . . are reasonably necessary because of local climatic, geological or topographical conditions" (Health and Safety Code Section 17958.5).

Further, the State Housing Law provides that local building departments can authorize the use of materials and construction methods other than those specied in the uniform codes. In such cases building departments must nd the proposed design satisfactory and the materials or methods at least equivalent to that prescribed by the uniform codes with regard to quality, strength, effectiveness, re resistance, durability, safety, and the protection of health and safety (Health and Safety Code Section 17951). This may be used to promote the construction of affordable housing.

The law also encourages rehabilitation of substandard housing in several ways. Health and Safety Code Section 17958.8 allows the use of original materials and construction methods in older buildings. Section 17980 (b) (3) requires local enforcement agencies to consider needs expressed in the housing element when deciding whether to require vacation or repair of a substandard dwelling.

In the reconstruction of older buildings that would be hazardous in the event of an earthquake, the law allows cities and counties to use building standards that provide for the protection of the occupants, but that are less rigorous in other respects than current building standards (Health and Safety Code Sections 19160 et seq.). These last three points are particularly useful where a community has adopted an optional historic preservation element.

These options provide local governments with a variety of means to implement the goals and objectives of their general plans. For example, if the safety element of the general plan nds that certain areas of the community are subject to re danger, the building code can be modied to require re resistant materials, such as stone, brick, tile or stucco, to be used in place of wood. Similarly, the building code could be modied to promote the rehabilitation of historically and architecturally signicant buildings or the use of industrial lofts for living space.

An optional energy conservation element may be implemented through local energy codes. A number of local governments, including the City of Davis, have enacted energy codes specically tailored to their communities. These codes set minimum performance standards for energy efciency through either a prescriptive method (e.g., shading of windows, exterior wall color, weather stripping, and insulation) or a performance method, based on mathematical calculations.

A similar approach may be taken in response to identied seismic hazards. The City of Santa Rosa, for example, has established a program of structural inspections and rehabilitation that works together with strict local building codes to reduce seismic risks. The program establishes criteria for evaluating seismic risk in buildings, prioritizes required projects, and correlates closely with the policies of the general plan.

Enforcement and abatement procedures are yet another means of implementing the general plan, particularly the housing and safety elements. State law charges local governments with primary responsibility for enforcing building and housing codes, although by special arrangement, they can contract with the State Department of Housing and Community Development for assistance.

Various state laws and regulations spell out abatement procedures for buildings which, because they are substandard or unsafe, constitute a public nuisance. The most common procedures, set forth in the Government Code, the California Administrative Code, the Uniform Housing Code, and the Dangerous Building Code, provide for abatement by repair, abandonment, or demolition. Local procedures may vary depending upon the enabling provision that is used.

REDEVELOPMENT

Redevelopment, which combines police and corporate powers, is one of the most powerful tools available to local governments for implementing their general plans. As a potential source of infrastructure nancing, redevelopment may help carry out the land use proposals of the land use element. Where the private sector alone is unable or unwilling to assemble land and invest the necessary capital for revitalizing blighted areas, redevelopment is a means of focusing resources to transform a deteriorating area into a more productive part of the community.

In California, the Community Redevelopment Law (Health and Safety Code Sections 33000 et seq.) provides cities and counties the authority to carry out redevelopment projects. A city council or board of supervisors must rst create a redevelopment agency by ordinance. The ordinance activating the agency can provide for a governing board that is the same or separate from the local legislative body. The law also permits two or more cities and counties to create a redevelopment agency by a joint powers agreement.

Planning for redevelopment involves several steps. First, the council or board must designate, through a resolution, a part or parts of the community as an area or areas to be surveyed (survey area) to determine whether redevelopment is feasible. After the survey, the local planning commission designates the boundaries of the project area and prepares a prelimi nary redevelopment plan for submission to the redevelopment agency.

Only "blighted" areas qualify for redevelopment, although related areas that have not deteriorated may be included. State law denes "blight" as a variety of conditions including unt or unsafe buildings, neglect by absentee landlords, underdevelopment, and deteriora tion or disuse of properties because of irregular or undersized lots. A nding of blight must be supported by substantial evidence, and if there is no challenge to this determination within 60 days, blight is conclusively presumed to exist. Although there have been only a handful of lawsuits challenging a blight designation, the majority of these suits have been brought by local governments that may lose revenue as a result of a nearby redevelopment project.

Once it receives the preliminary plan, the redevelopment agency must prepare a more detailed redevelopment plan, the contents of which are specied by state law. Among other things, it must include plans for streets, buildings, and open space; a statement of the effect of the plan on residents of the area; a description of nancing methods; and a plan for participation of affected property owners (Health and Safety Code Sections 33332 et seq.).

The planning commission must review the redevelopment plan before it is submitted to the council or board for review and nal adoption. The law provides that a city or county must have an adequate general plan before it can adopt a redevelopment plan, and the redevelop ment plan must conform to the adopted general plan (Health and Safety Code Sections 33302 and 33331).

Under state law, redevelopment agencies have broad power to implement their plans. Within the project area, the agency may acquire land, manage property, relocate people and businesses, clear land, prepare sites, build facilities, sell land, and rehabilitate buildings and structures. A redevelopment agency may acquire land by purchase, lease, gift, or by eminent domain (Health and Safety Code Section 33391). It may construct public improvements alone or in cooperation with other public authorities (Health and Safety Code Section 33421). It may also clear and grade land for lease or resale to people who agree to develop the land in accordance with the redevelopment plan (Health and Safety Code Section 33432). The agency is required to prepare a relocation plan for people and local community institutions that a redevelopment project temporarily or permanently displaces (Health and Safety Code Section 33411).

The law provides that a redevelopment agency may obtain nancing from any legal source. Most redevelopment agencies rely on tax increment nancing as their primary source of money. Tax increment is the growth in property tax revenue within the redevelopment project area which occurs during the redevelopment period. The increased margin or increment of tax revenues from subsequent improvements go to the redevelopment agency and pay the project's costs instead of being turned over to the usual taxing agency (e.g., city, county, special district). This lasts until the project is completed and paid. Redevelopment agencies may also obtain nancing by selling tax allocation bonds, which are usually paid off with tax increments. Because of Proposition 13, however, property is reassessed only upon its sale and increments of value grow more slowly than before.

The 1979 Gann Initiative imposed a spending limit on local agencies. In 1980 the Legislature exempted from this limit, expenditures of tax increment revenues for repayment of indebtedness incurred for specied redevelopment activities. In 1981 the Legislature expanded the revenue raising ability of redevelopment agencies by authorizing them to impose a one percent sales and use tax on tangible personal property within the redevelop ment project area (Revenue and Taxation Code Section 7202.6).

Implementation Authority

Financing

growth management

Housing Set Aside

Controversy

In addition to using tax increment nancing and imposing a sales and use tax, the agency may accept loans or grants from agencies of the federal government, the state government, or any other public agency. One of the main funding sources for redevelopment has been the federal Community Development Block Grant Program.

Redevelopment agencies also have broad powers to improve and develop housing. Each agency is required to set aside 20 percent of its tax increment revenues in a special Low and Moderate Income Housing Fund (L&M Fund) unless the agency makes certain ndings. Reports led with the Department of Housing and Community Development for scal year 1987-88 indicated that ending balances in L&M Funds statewide totaled over $232 million.

Some redevelopment projects have been controversial. Critics have charged that rather than solving problems, redevelopment simply shifts problems. They claim that redevelopment shifts lowerincome businesses and families to other areas, tends to reduce the community's housing stock for lowincome people, and that it subsidizes those who need it least. Abuse also occurs when redevelopment has been approved for an area that is undeveloped.

Others have argued that communities in the pursuit of increased tax revenues have misused their redevelopment powers by, for example, building commercial developments far in excess of what the regional markets can support. It is therefore not surprising that counties and other agencies frequently object to losing their share of property tax increment revenues. These criticisms highlight the problematic nature of redevelopment and underscore the need to carry out redevelopment within the context of community wide goals and objectives and with the active involvement of all groups affected.

GROWTH MANAGEMENT

A general plan may also be implemented through local growth management measures. Growth management goals, objectives, and policies are put into effect by such growth measures.

Since the late 1960s, many California communities have developed growth management systems to promote a wide variety of environmental, social, and economic goals. Among these are balancing the service costs and revenues associated with development, protecting environmental and aesthetic quality, encouraging efcient land and water use, preserving community identity, and protecting the economic base of the community.

Most growth management techniques fall into three major categories planning and regulatory power, expenditure programs, and other measures, as illustrated in the chart on the following page. Most local growth management programs employ one or more of these techniques to shape development.

Over the years, growth management has raised a number of legal questions. State and federal courts have dened several principles that must be observed in establishing a growth management system:

· Local governments must act within the powers delegated to them by the California Constitution and state statutes;

· Regulations using the police power must promote the public's welfare;

· A local government's actions cannot discriminate against individuals or groups on the basis of race, religion, age, or economic status;

· Local governments cannot enact regulations which directly prohibit immigration or discriminate against newcomers;

· Land use controls must allow for some reasonable use of private property; and

· A landowner whose property is subject to an overly restrictive land use regulation may be entitled to just compensation, even if the restriction is a temporary one.

Publications cited in the Bibliography discuss the legal considerations in detail.

In addition to the courts establishing guidelines for growth management programs, the Legislature has in recent years enacted a number of requirements aimed at ensuring that local land use practices do not become exclusionary. If a city or county adopts or amends a mandatory general plan element which limits the number of housing units that may be constructed on an annual basis, it must support its action with specic ndings.

The ndings must include such considerations as: (1) the efforts to implement the housing element and (2) the public health, safety and welfare considerations that justify reducing the housing opportunities of the region (Government Code Section 65302.8).

The state's zoning and subdivision laws require cities and counties to consider effects upon the housing needs of the region when enacting ordinances and other actions (Government Code Sections 65863.6, 65913.2, and 66412.3). The laws further require cities and counties to balance the housing needs of the region against the needs of their residents for public services and the available scal and environmental resources (Government Code Sections 65863.6 and 66412.3).

Examples Of Growth Management Techniques

· Limits on the annual number of development permits

· Establishment of geographic limits to growth (i.e., urban limits and service areas)

· Annexation policies

· Environmental performance standards

· Downzoning

· Zoning requiring large minimum parcel sizes for openspace or steep lands

· Exclusion on growth

· Transfer of development credits

· Public acquisition of openspace lands

· Purchase of development rights

· Locating public improvements to inuence growth

· Scheduling capital expenditures to inuence growth

· Housing subsidies

· Development impact fees

· Preferential assessment of agricultural, timber, and other openspace lands

Findings

Initiatives

Limitations

General Plan

Most growth management programs are adopted as part of a city's or county's general plan or its implementing ordinances. Since 1978 an increasing number of growth management schemes have been instituted by voterapproved initiatives. The California Constitution guarantees the right to initiative and referendum and places only minor limitations upon the use of such powers.

In general, California courts have held that these powers are restricted by the same limitations that restrict the legislative body's power to adopt plans and ordinances. In other words, the people cannot adopt by initiative or referendum any ordinance that the legislative body would not have the power to enact.

As noted previously, state law requires cities and counties to make certain ndings if they adopt an ordinance which limits the number of dwelling units. When the validity of such an ordinance is challenged in court, the local entity must prove that the ordinance is necessary to promote public health, safety and welfare (Evidence Code Section 669.5). In Building Industry Association v. City of Camarillo (1986) 41 Cal.3d 810, the California Supreme Court interpreted this requirement to include growth limiting ordinances adopted by initiative. However, the court also ruled that a voter initiative is neither required nor expected to include ndings under Government Code Section 65863.6.

Another pertinent case worth noting is deBottari v. Norco City Council (1985) 171 Cal.App.3d 1204. This involved a referendum to repeal rezoning ordinances approved by the Norco City Council. Here, the Court of Appeal upheld the city's refusal to place the referendum on the ballot because repeal of the zoning would have resulted in the property being zoned in a manner inconsistent with the city's general plan. Therefore, the requirement for consistency between the general plan and zoning (Government Code Section 65860) applies to zoning referenda and possibly, by implication, zoning initiatives as well.

As a practical matter, a growth management program will be more effective and, perhaps, subject to fewer legal challenges if it is tied directly to the general plan rather than adopted independently. Furthermore, there are several important legal reasons for a growth manage ment/general plan link.

First, all regulations based on police power and used in a growth management system must promote the public's health, safety, or general welfare. The general plan represents the most comprehensive statement of the community's general welfare as it relates to environmental and land use matters.

Second, the general plan uses population projections to establish the basis for proposed land uses and facilities. When growth management systems seek to manage population either by setting an absolute limit on growth or by regulating the annual growth rate, population projections developed in the context of the general plan provide a rational basis for those systems.

Third, the general plan is a forum for balancing competing interests and objectives in deciding the future of the community. The community's desire to regulate growth may conict with its obligation to provide adequate housing opportunities. The general plan is a most appropriate mechanism for making the necessary trade-offs between these two competing objectives.

Fourth, as explained later in this chapter, various provisions of state law require local governments to implement the general plan in a consistent manner. The requirements calling for consistency with the general plan are clear for zoning and subdivision regulations and capital improvements, all of which are commonly used growth management techniques.

JOBS/HOUSING BALANCE

In recent years, Californians in urban areas have become increasingly concerned with worsening trafc congestion and deterioration of air quality. Reliance on the automobile has created patterns of development and employment that are often inefcient. Suburbanites now routinely commute 25 miles or more from their homes to their places of employment. Jobs are dispersed throughout employment regions making the use of public transit problematic and inefcient. Additionally, car trips between home and the grocery store (or the bank, the dentist, the restaurant, etc.) are longer when residential and commercial areas are not convenient to each other.

"Jobs/housing balance" is based on the premise that commuting, the overall number of vehicle trips, and the resultant vehicle miles traveled can be reduced when sufcient jobs are available locally to balance the employment demands of the community and when commer cial services are convenient to residential areas. Lengthening commute times and growing congestion have brought this idea to the fore in some communities. The County of Ventura and the Southern California Association of Government (SCAG), for example, have both embraced jobs/housing balance as a weapon in the ght to maintain air quality.

Achieving a jobs/housing balance requires controlling the location, intensity, and nature of jobs and housing in order to encourage a reduction in vehicle trips and miles traveled and a corresponding increase in the use of mass transit and alternative transportation methods such as bicycles, carpools, and walking. Planning for a jobs/housing balance requires indepth analyses of employment potential (existing and projected), housing demand (by income group and corrected for regional housing opportunities), new housing production, and the relationship between employment opportunities and housing availability. Other factors such as housing cost and transportation systems must also be evaluated.

Strategies include locating higher density housing near employment centers, promoting inll development, actively recruiting businesses that will utilize the local work force, and providing affordable housing opportunities within the community. Jobs-housing provisions most directly affect the land use, circulation, and housing elements.

The automobile makes it relatively simple for employees to commute beyond the city limits to jobs in other communities. The willingness to drive to work is illustrated by the inux to Manteca, Tracy, and other San Joaquin Valley areas of people who are employed in the Livermore Valley. The free ow of employees across political boundaries complicates the attempts of individual communities at balancing jobs and housing. Because of the regional nature of employment, a regional approach to jobs/housing balance has the best chance for success.

ACQUISITION

City and county acquisition of real property rights is another means of implementing a general plan. Land acquisition is particularly useful in carrying out the plan proposals of the land use, circulation and openspace elements. In implementing the land use element, cities and counties may acquire land designated for government ofces, police and re stations, parks, access easements, etc., or for public purposes such as urban redevelopment. With regard to the circulation element, local governments acquire land for public rightsofway (e.g., streets, sidewalks, and bicycle paths), transit terminals, airports, etc. The openspace preservation proposals of the openspace element can also be achieved by the acquisition of real property rights.

A city or county may acquire real property rights in various ways. A city or county, in consultation with its legal counsel, may wish to consider the following acquisition methods:

· Acquisition of Fee Simple Absolute Interests

When a local agency acquires a fee simple absolute estate in land it obtains all the real property interests associated with the land including the rights to sell, lease and develop the property. Consequently, fee simple absolute ownership entitles a city or county to develop its land or retain the property in open space. Absolute fee simple interest may be purchased or acquired by means of exactions (e.g., See Government Code Section 66477), development agree ments, or gifts.

· Acquisition of Easement Interests

In acquiring an easement interest a local jurisdiction might obtain only the development rights to real property (rather than absolute fee simple title) while the seller retains all other property rights. See the discussion of conservation, open space, and scenic easements elsewhere in this chapter.

· Leasing

By leasing real property, the lessee possesses and occupies the leased real property for a determinable time period although the landlord retains full ownership. A city or county may lease land from a property owner for access purposes, open space preservation, etc.

· LeasePurchase Agreements

Real property may be leased by a city or county and rental payments may be put toward purchasing the property. If a local jurisdiction does not have enough capital to buy the land outright, the lease-purchase method may be useful.

· Purchase and Resale

Once a city or county has purchased a parcel of land or the parcel's development rights, the jurisdiction may preserve open space (or otherwise control land use) by selling the land or the development rights with deed restrictions specifying permitted land uses. This technique enables the jurisdiction to recover most if not all of its purchasing expenses.

· Purchase and Lease

A local jurisdiction may preserve open space or otherwise control land use by purchasing real property and then leasing it subject to a rental contract specifying permitted uses. Purchase and leasing land allows a city or county to recoup its purchasing expenses.

· Joint Acquisition

Two or more local governments may combine their funding resources to acquire joint ownership of real property rights. Joint acquisition allows local governments to share the nancial burden of purchasing land.

· Land Swapping

Local governments may exchange some of their land for parcels owned by private landowners or other jurisdictions in order to obtain desirable open space, park sites, etc.

· Eminent Domain

Eminent domain is the taking of property for a public use or purpose such as the acquisition of open space for a city greenbelt. A taking may include fee simple absolute estates, lessthanfee interests such as easements, and even personal property. An owner whose property is taken is entitled to receive just compensation for his/her loss (California Constitution Article I, Section 19). Eminent domain often involves condemnation proceed ings.

Cities and counties are enabled through state legislation to exercise the power of eminent domain (Government Code Sections 25350.5 (counties) and 37350.5 (cities)). "Except as otherwise specically provided by statute, the power of eminent domain may be exercised only as provided in [the Eminent Domain Law commencing with Code of Civil Procedure Section 1230.010]" (Code of Civil Procedure Section 1230.020). For a listing of other statutes with eminent domain provisions see "Cross References" preceding Code of Civil Procedure Section 1230.010 in West's Annotated California CodesCode of Civil Procedure .

With regard to open space, acquisition has several advantages over other forms of general plan implementation. First, acquired undeveloped land will probably remain open longer than open space preserved by politically vulnerable regulatory techniques such as zoning and specic plans. Second, if necessary, a city or county may acquire real property rights by using eminent domain thus overcoming the problems inherent in the voluntary nature of preserving open space by contractual tax incentives such as Williamson Act contracts. (See the discussion of preferential assessments in this chapter.) Finally, under this alternative, private landowners whose property is restricted to open space receive just compensation for their lost development opportunities (excepting exactions and gifts).

The primary disadvantage of acquisition is its cost. Land is often expensive, especially if urbanization is imminent. At the same time, local governments are restricted in raising taxes to nance their land purchases and federal funds are often scarce.

Nevertheless, there are still ways for local governments to nance land acquisitions. Some of these include the following:

· General Obligation Bonds

As a result of the passage of Proposition 46 in June 1986, local governments may, subject to a twothirds voter approval, secure general obligation bonds by raising property taxes above the one percent limit set by Proposition 13. The money raised from bond sales may be used for purchasing and improving real property.

Advantages

Acquisition Financing

Funding

Information

· State General Obligation Bonds

The state grants money to local governments for their use in acquiring and improving local and regional parks, open space, beaches, and recreation areas. The money comes from the sale of state general obligation bonds. Local governments may be required to contribute matching funds.

· Special Taxes

Local special taxes may be levied to fund or to secure bond funding for open space acquisition. Special taxes require a twothirds voter approval.

· Mello-Roos Community Facilities Act

Local governments may use this act in levying special taxes to fund park and open space acquisitions, maintenance, and other purposes. Bonds secured by such taxes may be issued for the same purpose. Mello-Roos special taxes require a two-thirds voter approval or, in uninhabited areas, approval by two-thirds of the property owners. It may be easier to establish a special tax when property is still uninhabited.

· Special Assessments

Cities and counties may levy special assessments to nance the acquisition of real property rights. Bonds secured by such assessments may be used for the same purpose.

· Tax Increment Financing

The tax increment collected as part of a redevelopment project may be used, along with bonds secured by the increment, to purchase or lease real property rights.

· Grants

Park or openspace funding is sometimes granted to local governments by the state, private foundations, community-minded citizens, and by nonprot land trusts. The Coastal Conservancy also provides open space grants.

For additional information and details regarding funding sources, see the following section of this chapter entitled "Financing Implementation of the General Plan." Additional funding information may be obtained by reviewing the Catalog of California State Grants Assistance or by contacting the following agencies:

· The Funding Sources Information Center

California State Library

914 Capitol Mall, Room 309

Sacramento, CA 95814

916/3224570

The Funding Sources Information Center serves as a central location for materials useful in identifying funding sources and preparing grant proposals.

· California Department of Transportation District Ofces

Local Assistance Engineers

(check local directory for location of nearest district ofce)

Local assistance engineers in each of the twelve CALTRANS district ofces help local agencies apply for federal assistance to nance urban transportation projects.

preferential assessments

· The Foundation Center

312 Sutter Street

San Francisco, CA 94102

415/3970903

The Foundation Center is a nonprot organization providing a reference library with materials on foundations and grants, corporate philanthropy, nonprot organization management and fund raising techniques. It serves the public including local govern ments, private nonprot organizations, and individuals.

PREFERENTIAL ASSESSMENTS

Preferential assessment of real property offers landowners an economic incentive for keeping their land in agricultural, timber, or openspace uses. This can serve to implement the local land use, openspace, and conservation elements by reserving areas designated for agriculture, open space, timber, scenic resources, and natural resource uses. State law provides local government with several preferential assessment programs. They share the characteristic of being "enforceable restrictions" for the purpose of restricting land values. The following sections will briey discuss some of these methods.

WILLIAMSON ACT

The California Land Conservation Act (Williamson Act) allows counties and cities to establish agricultural preserves and offer contracts to landowners for the purpose of protecting agricultural land from premature conversion to other uses (Government Code Sections 51200 et seq.). A local program such as this can help implement goals and policies of the land use or open space elements regarding the conservation of agricultural lands. Owners of qualied land who contract with the county or city agree to continue agricultural or compatible activities for a period of at least ten years. In return, the county or city agrees to assess the property at its agricultural rather than market value. The state may reimburse the local agency for a portion of its resultant tax losses through a subvention fund.

The Williamson Act was enacted in response to the loss of agricultural land that was occurring in areas of increasing land values. Typically, as development approached an agricultural area the price of land was driven upward by owners and buyers speculating on the future development potential of the land. The increase in prices led to a corresponding increase in the assessed value of the land and to the owner's property taxes. At some point, the increased tax burden made it uneconomic to continue farming and encouraged the sale of the land for development.

The primary goal of the Williamson Act is to provide incentives for the continuation of agricultural uses. This is done by breaking the relationship between local market value and the assessment rate applicable to lands which have been placed under contract and thereby "enforceably restricted" to agricultural uses.

Nonrenewal

Cancellation

Voluntary Contracts

Procedure

A land use contract runs for a period of ten years, automatically renewing itself each year. Termination of the contract may be accomplished by one of two methods.

One method allows the landowner or local government to le a notice of "nonrenewal." The notice halts the yearly renewal, resulting in expiration of the contract at the end of ten years.

Alternatively, at a landowner's request, a local government may immediately cancel a contract after making certain strict ndings. Cancellation is subject to the owner's payment of penalty fees.

Williamson Act contracts are voluntary and therein lies the legislation's greatest strength and weakness. Voluntary contracts lessen the potential for litigation over the uncompensated "taking" of land that is sometimes alleged when land uses are restricted. Also, because the owner is directly involved in entering the program, it imparts responsibility to the landowner for insuring that the program works.

On the other hand, the potential prots of future development on the urban fringe may outweigh the tax advantages of the contract. Thus many landowners may opt to eschew the Williamson Act in the very area where it could be most effectively applied by a local government. This can lead to an inefcient, patchy distribution of protected agricultural land and may actually promote leapfrog development patterns.

At the same time, farmers and ranchers who own remote land where urbanization is unlikely may seek the tax advantages of the act. They will enter into contracted agricultural preserves which have the primary effect of lowering local government tax revenues.

TIMBERLAND PRODUCTIVITY ACT

The Timberland Productivity Act of 1982 requires all counties and cities with productive private timberland to establish "Timberland Production Zones" (TPZs) to discourage the premature conversion of timberland to other uses (Government Code Sections 51100 et seq.). The land use element must reect the distribution of existing TPZ zoning and have a land use category that provides for timber production. Also, a local government may use TPZ zoning to implement the conservation element's timber resource provisions.

Patterned after the Williamson Act, TPZs are rolling tenyear contracts providing preferen tial tax assessments to qualied timberlands. Under this program, assessments on timber are based on the value of the timber at the time of harvest, rather than an annual assessment on the market value of standing timber. Assessment of zoned timberland is based on a statutory value of land that is related to site capability, and is annually indexed to changes in the periodic immediate harvest value.

During the rst two years of the act, local governments could adopt TPZ zoning on qualied parcels without approval of the property owner provided that the statutory procedures were followed. Currently, additions to the local program are limited to requests from property owners.

Subject to approval by the local legislative body, land may be removed from a TPZ by rezoning. The effective date of the new zone will be deferred, however, until expiration of the tenyear restriction. The local legislative body may, under special circumstances, approve immediate rezonings as well.

As with the Williamson Act, the Timberland Productivity Act is used to protect resource lands from premature urbanization. However, it differs from the Williamson Act because it did not rely on voluntary inclusion during its beginning stages. This was advantageous because restrictions could be applied in a more comprehensive manner than Williamson Act contracts and provide coherent preserves of timberland. Its primary disadvantage is that there is greater potential for conict between property owners and local government over the designation of lands.

CONSERVATION, OPEN SPACE AND SCENIC EASEMENTS

State law provides several means of conserving open space through less-thanfee real property interests. A lessthanfee interest includes only selected rights or grants the holder the right to prevent certain land uses. Easements are attractive lessthanfee interests because they are less expensive than the purchase of full fee rights, can be more effective than zoning, do not displace property owners, and may yield tax advantages to the grantor. Local agencies may obtain these easements by purchase, exaction or gift. Generally, the enabling legislation establishes the requirements for accepting, recording, or cancelling easements. The property owner retains ownership and the rights other than those expressly limited by the easement.

The Conservation Easement Act (Civil Code Sections 815816) provides that a local government or a nonprot organization may acquire perpetual easements for the conservation of agricultural and open space lands and historic preservation. The landowner and accepting agency will agree upon the types of uses that may be permitted and these will be incorporated into the easement. Granting of a conservation easement may qualify as a charitable contribution for tax purposes. The easement may also qualify as an "enforceable restriction" for purposes of preferential assessment.

The OpenSpace Easement Act of 1974 (Government Code Sections 51070-51097) authorizes local governments to accept easements granted to them or to nonprot organiza tions for the purpose of conserving open space or agricultural lands. These easements are established for a ten year period, and this term is renewed annually. An open space easement must be consistent with the general plan (Government Code Section 51084). The local government is prohibited from granting building permits for land subject to this type of easement, considered an "enforceable restriction" of land under a preferential taxation program. Procedures for termination by nonrenewal and by abandonment are set out in the state statute.

There are other noteworthy open space provisions in the Government Code. The Scenic Easement Deed Act (Sections 69506954) authorizes a local government to purchase fee or scenic easements, but does not promote a specic mechanism for obtaining them. Sections 65870-65875 enable local governments to adopt an ordinance for the purpose of establishing open space covenants with property owners. These deed restrictions regulate land uses.

Conservation Easement Act

Open-Space Easement Act

Scenic Easement Deeds and Open Space Covenants

TRANSPORTATION SYSTEM

MANAGEMENT

Transportation system management (TSM) is a means of improving the efciency of the existing transportation system through more effective utilization of facilities and reduction of user demand. TSM strategies, either individually or as a package of supportive programs, attempt to reduce existing trafc congestion and vehicle miles travelled and increase the person - carrying capacity of the transportation system. Other benets of TSM include improved air quality, conservation of energy resources, reduction of new transportation and parking facility needs, and prolonged life of existing transportation facilities.

Generally, TSM strategies cost less than traditional capacity increasing capital projects. To achieve the highest degree of TSM success possible, it is imperative that the planning and implementation of TSM be coordinated among transportation and planning agencies, transit providers, developers, and employers.

When supported by all the parties affected by poor circulation, TSM has widespread applications for implementing various elements of a city's or county's general plan. For instance, TSM planning policies can be used to help correlate the land use and circulation elements. Such policies assure that planned street and highway capacities will adequately accommodate trafc generated by planned land uses. TSM programs that discourage single passenger car commutes and that promote exible hours at places of employment may improve the levels of service of area streets and highways.

If a jurisdiction's conservation element includes clean air or energy conservation policies, such provisions may be implemented through TSM programs that reduce motor vehicle trips and thereby air pollution and energy use. An energy and air quality element may be similarly implemented.

Listed below are various TSM techniques aimed at improving the efciency of circulation on highway and transit systems by improving ow, reducing congestion, and increasing the carrying capacity of existing facilities. The California Department of Transportation has divided these techniques into seven categories containing particular measures which may be applied to specic TSM cases.

· PROGRAMS TO IMPROVE TRAFFIC FLOW

Signalization

Trafc signal synchronization

Oneway streets

Changeable message signs

Computerized trafc systems

Integrated single-system trafc operations systems

Reversible lanes

Ramp meters

Intersection widening

· PREFERENTIAL TREATMENT FOR TRANSIT AND OTHER HIGH OCCU PANCY VEHICLE (HOV) STRATEGIES

Exclusive Highway Bus or Bus/Carpool Lanes

Contraow HOV Lanes

Reserved Lanes or Dedicated Streets for Buses/HOV

Bus Turnouts

Bus Actuated Signals

Ramp meter bypass lanes for HOVs

· PROVISION FOR PEDESTRIANS/BICYCLES/HANDICAPPED

Bicycle Lanes/Paths

Bicycle Storage

Pedestrian/Transit Malls

Pedestrian Signals

Bicycle Actuated Signals

Bicycle/Transit Integration

Weather and theft resistant bicycle parking facilities at employment sites, shopping areas, etc.

Shower and locker facilities at places of employment for bicycling employees

Handicapped Access Improvements

· MANAGEMENT/CONTROL OF PARKING

OnStreet parking controls

Increased parking fees

Park and ride facilities

Preferential parking for carpools/vanpools

Residential permit parking

Removal of onstreet parking

Stricter enforcement of onstreet parking codes

Increased parking fees to reect true land costs

Graduated parking fees with higher fees for single occupant vehicles

Metered on-street parking

· CHANGES IN WORK SCHEDULES, FARES AND TOLLS

Work hour management (compressed work week, exible work hours)

Transit/HOV bypass at toll plazas

Bus fare restructuring/subsidies

Peak period truck restrictions

Telecommuting

· ACTIONS TO REDUCE MOTOR VEHICLE USE IN CONGESTED AREAS

Carpool/vanpool matching program

Carpool public information

Carpool/vanpool incentives

Neighborhood ridesharing

Driver advisory Highway surveillance

Trip reduction ordinances

Subsidized rideshare vehicles

Guaranteed ride home for carpoolers, transit riders, etc.

Work location alternatives

Transportation management associations

Inter-city urban commuter rail

· IMPROVED PUBLIC TRANSIT

Feeder services improvements

Demand responsive system

Shelters and other passenger amenities

Rehabilitated/expanded bus eet

Passenger information system improvements

Transit marketing

With the increase in trafc congestion and the adoption of the California Clean Air Act of 1988, public transportation and air quality management agencies have been seeking cost effective ways to reduce trafc congestion and vehicle emissions. The result has been the adoption of numerous trip reduction ordinances (TROs) by local and regional agencies. Most TROs focus on the commute trip and the employer. More than 40 TROs have been implemented in California.

For further information regarding transportation system management, as well as sample trip reduction ordinances, contact:

Caltrans

Department of Transportation Planning

Technical Assistance Branch

P.O. Box 942874

Sacramento, CA 94274-0001

JOINT DEVELOPMENT

Joint development is a strategy that helps correlate land use with circulation. It closely links real estate development to the market and locational advantages provided by a busy transit facility.

Joint development involves the nancing of public transit improvements by developers in exchange for more immediate access to transit stops and terminals and the comings and goings of passengers who are potential customers or renters. Transit access to commercial and residential uses also increase transit ridership. Consequently, both the private and public sectors benet from working and planning in a coordinated manner.

Successful joint development projects have been constructed in major U.S. and Canadian cities. For example, the Toronto Transit Commission agreed to increase the accessibility (and, in effect, the patronage) of Toronto's Eaton Centre by connecting each end of the $265 million three-level shopping mall with a subway station. In return, the developers paid for widening the stations and built a complete set of twolevel escalators at one of the stations.

From these joint development projects and others undertaken to date, the Urban Land Institute in Joint Development: Making the Real Estate-Transit Connection , (See Bibliography) cites a number of lessons that will facilitate and insure the successful implementation of the joint development process. For instance:

· Transit access can be a major factor in determining the viability of both the retailing and reinvestment in downtown areas.

· Designating one public agency as the lead in coordinating the efforts of others increases the efciency of implementation.

· Transit location and design are extremely critical real estate factors with regard to joint development aspects such as retail frontage and area, pedestrian trafc and project cost.

· The location of station entrances is a powerful tool for determining joint development potential.

· The coordination of construction can save signicant sums of money for the developer without cost to the transit authority.

· Easement agreements for locating transit facilities can promote joint development while reducing land acquisition costs.

· Joint development in the form of station modernization has strong potential in older transit systems, especially where redevelopment is the objective of both the public and private sectors.

· It is essential for transit authorities to be in touch with private landowners well before design and construction in order to maximize cost savings and ensure proper timing of efforts.

· The position of retail facilities at transit stations must capitalize on pedestrian ow before pedestrians are given options to disperse prior to reaching the stores. Smaller retail facilities not located on pedestrian trafc routes have difculty in attracting transit customers.

· Local government land use controls are critically important for joint development. To arrive at effective policies, the public decision makers must be aware of the relationship between transit and land use, the signicance of proper timing, and the importance of the consistency of decisions over time. Local governments must make the difcult decisions in those confrontations between the proponents of existing land uses and the proponents of more intensive development patterns that provide the greatest returns for transit investments and are consistent with regional growth patterns aligned with xedrail transit.

· The disposition of land can be conducted more effectively by transit authorities when their policies are sensitive to the needs of developers and the realities of the real estate market.

· The public sector should assist private developers and the transit system by providing the facilities to connect future real estate developments to transit stations.

· Private practitioners in joint development should not lose sight of the basic real estate aspects of their projects. Market analysis, project conguration, and project management are no less important in joint development than in the traditional real estate projects.

· Transit planning must be sensitive to the ways in which route alignment, levels of ridership, station location and access will affect joint development potential and longterm economic viability.

· Joint development will encourage higher density in the structure of metropolitan areas when transit route alignments and station locations are coordinated with land use policy.

Joint development offers the opportunity to combine public and private efforts to maximize the positive effects of public transit on real estate investment and vice versa. Success in the achievement of transitrelated development will result from detailed planning and dedicated implementation efforts by both the public and private sectors.

FINANCING IMPLEMENTATION

OF THE GENERAL PLAN

LOCAL FINANCING

Local governments use a variety of methods to nance the facilities and services needed to implement their general plans. To an extent, cities and counties can control the timing, type, and quality of development by exercising their authority to nance and construct public facilities.

There are four principal funding sources for local government: taxes, exactions, fees, and assessments. For more information on funding options for local governments, see A Planner's Guide to Financing Public Improvements, published by OPR.

The property tax restrictions created by Propositions 4 and 13 have changed the basis for nancing local facilities and services and forced local governments to seek new funding sources. The passage of Proposition 13 in 1978 constitutionally limited local property taxes to one percent of the 197576 market value of property. This constitutional amendment (Article XIII A) allows an annual two percent increase in property assessments and reevaluation to current market value when property is sold. It prohibits the levying of additional "special taxes" unless approved by a twothirds vote of the registered voters.

Proposition 4 limits government spending. This constitutional amendment (Article XIII B) prohibits the annual appropriations of most public agencies from exceeding the prior year's level (except for adjustments based on changes in population and the Consumer Price Index). However, Proposition 4 exempts those regulatory fees or user charges which cover only the cost of services from an agency's appropriation limit.

Cities and counties generally levy taxes to raise revenue for general government purposes rather than to nance specic services. The most familiar tax is the ad valorem property tax whereby property is taxed at a given rate and the total tax charge depends upon the assessed value of the property. Local governments also impose a range of taxes on other activities sales and use taxes, admissions taxes, occupancy and hotel room taxes, property transfer taxes, utility user taxes, parking taxes, vehicle license taxes, and business license taxes.

Although to do so requires approval by twothirds vote, local governments may levy special taxes to nance facilities and services. The California Supreme Court dened special taxes as: " . . . taxes which are levied for a specic purpose rather than . . . a levy placed in the general fund for general governmental purposes" (City and County of San Francisco v. Farrell (1982) 32 Cal.3d 47).

The Mello-Roos Community Facilities Act of 1982, authorizes cities, counties, and special districts to create community facilities districts and to levy special taxes within these districts to nance new public improvements, police and re protection, and school construction (Government Code Sections 53311 et seq.). The Mello-Roos Act further provides for issuance of bonds, allowing the rapid accumulation of capital.

Although Proposition 13 circumscribes the use of property taxes and property transfer taxes, local governments retain some exibility in levying other kinds of tax. Case law since 1979 has dened the difference between allowable taxes and those which constitute special taxes subject to two-thirds voter approval. In City and County of San Francisco v. Farrell (1982) 32 Cal.3d 47, the state Supreme Court held that a payroll and gross receipts tax was not a special tax (and therefore did not require two-thirds voter approval) on the grounds that it was levied for general revenue purposes and deposited in the general fund.

Proposition 62, a statewide statutory initiative approved in November 1986, attempted to close the Farrell loophole. It provided that new general taxes could only be passed upon approval of two-thirds of the legislative body of the city or county and of a majority of the voters. In addition, it required that general taxes which had been approved on or after August 1, 1985 had to be reapproved by a majority of the voters within two years of the passage of Proposition 62.

The impact of Proposition 62 has been blunted by court decisions. Prior to its passage, a superior court ruled that the initiative statute did not apply to charter cities because it did not amend the "home rule" provisions established under the State Constitution. Then, in 1988, an appellate court ruled the retroactive vote provision unconstitutional for violating the state Constitution's prohibition on tax-related referenda ( City of Westminster v. County of Orange (1988) 204 Cal.App.3d 623). Whether the rest of the initiative remains valid is subject to debate.

In Los Angeles County Transportation Commission v. Richmond (1982) 31 Cal.3d 197, the California Supreme Court upheld the enactment of a sales tax by a simple voter majority on the grounds that the Los Angeles County Transportation Commission was not a special district within the meaning of Proposition 13 since it never had the power to levy a property tax. In City of San Jose v. South (1983) 146 Cal.App.3d 320, the California Court of Appeal interpreted the city's prorata special assessment for median strip maintenance as specically beneting the assessed properties and therefore not a special or ad valorem tax. As a charter city, San Jose's home rule powers allowed it to diverge from a strict application of the state enabling legislation.

The California Court of Appeal held in Fresno County v. Malmstrom (1979) 94 Cal.App.3d 974, that special assessments pursuant to the Municipal Improvement Act of 1913 (Streets and Highways Code Sections 10,000 et seq.) and bonds issued under the Improvement Act of 1911 (Streets and Highways Code Sections 5000 et seq.) were not subject to Article XIII A (Proposition 13) limits nor was twothirds voter approval required.

Mello-Roos

General Taxes

Special

Assessments

G.O. Bonds

Revenue Bonds

Special assessments are among the oldest techniques for funding construction of such physical improvements as sidewalks, sewers, streets, storm drains, lighting, and ood control that benet identiable areas. They have also been used to nance maintenance of some facilities. As discussed earlier, the courts have held that special assessments are not "special taxes" under Proposition 13 and, therefore, are not subject to the twothirds vote require ment. Assessments are also exempt from the Proposition 4 expenditure limit.

In 1981 the Legislature authorized the use of special assessments for nancing re protection, although this use is still legally untested (Government Code Section 50078). Some charter cities are experimenting with assessments for nancing nearly all facilities that might be needed to serve new development. San Diego's Facilities Benet Area assessments, for example, are based upon facility's needs projected by the general plan and are imposed on new development within geographic areas of benet. San Diego's assessments were held to be valid exercises of home rule directly related to needs identied in the general plan ( J.W. Jones v. City of San Diego (1984) 157 Cal.App.3d 745).

Special assessment bonds are a traditional tool for nancing sewer, water, street, sidewalk, street lighting, and similar improvements which benet property owners within a given area. Assessment bonds issued under the Improvement Act of 1911 are secured solely by the properties that benet from and are assessed for the improvements (Government Code Sections 5000 et seq.). Assessment bonds issued under the Improvement Bond Act of 1915 are secured by the assessed property plus a special reserve fund authorized by 1979 legislation to cover delinquencies (Government Code Sections 8500 et seq.).

Local governments have traditionally issued bonds to raise the capital needed to construct major public improvements such as sewer plants, water systems, and public buildings. Until Proposition 13 removed the authority to levy property taxes to fund general obligation (G.O.) bond issues, local agencies relied on G.O. bonds to nance the construction of facilities such as schools, re stations, and government ofces.

In 1986 the voters of California approved Proposition 46 for the express purpose of reinstating local governments' ability to issue G.O. bonds. Cities, counties, school districts and other districts may issue G.O. bonds and levy a property tax above the one percent Proposition 13 limit upon approval by twothirds of the voters casting ballots. The resulting bonds may be used for "acquisition or improvement of real property" only (i.e. acquiring or constructing land and buildings, streets, sewers, and other infrastructure). The property tax revenues authorized to pay debt service on G.O. bonds do not count against the issuer's Gann spending limit. These bonds carry interest rates lower than other forms of nancing which results in a lower debt service responsibility for the issuer. G.O. bonds are secured by local governments' ability to levy property taxes, but may be repaid from other revenue sources as available.

Although use of general obligation bonds by cities and counties may not reach preProposition 13 levels, they are again a viable funding source. In the November 1986 election, four of eleven proposed G.O. Bond issues passed. These funded schools (Clovis Unied School District), police facilities (Pasadena and LA County) and infrastructure (San Francisco).

Revenue bonds, which are backed by a reliable ow of future revenues from the facility or enterprise they fund were not affected by Proposition 13. Thus, the Revenue Bond Law of 1941 (Government Code Sections 54300 et seq.) will continue to be an important source of funds for the construction of hospitals, water facilities, sewer plants, parking facilities, bridges, auditoriums, and other such public facilities. Because revenue bonds are secured by the proceeds from the enterprise they fund, they carry higher interest rates than general obligation bonds.

Instead of being issued by the city or county, lease revenue bonds are issued by the nonprot corporation or special authority which constructs a facility and leases it to the city or county. Lease payments provide the revenue to pay off the bond and when the bond is retired the facility is turned over to the city or county. Some local agencies have used this method to nance administrative centers and schools.

In the wake of Proposition 13, the courts have shown sympathy for local governments' attempts to nd alternative methods of funding. However, local ofcials should consult their legal counsel for advice prior to enacting specic levies.

Exactions are dedications of land, improvements or in-lieu payments that are imposed on new development to fund the construction of capital facilities. In some jurisdictions, where development may adversely affect the availability of low and moderate-income housing, exactions are levied upon developers to nance the construction of sufcient housing to blunt that impact.

San Francisco, for example, has an inclusionary housing program that mandates the construction of affordable housing or payment of inlieu fees in accordance with a prescribed formula (relating units to projected employment) as a condition of new downtown ofce development. The city of Santa Monica requires that replacement housing be provided or inlieu fees paid as a condition to approval of condominium conversions and that affordable housing be provided by new ofce development according to a formula relating to the number of employees.

As explained in the section on subdivision regulations, the Subdivision Map Act authorizes cities and counties to impose exactions on subdivision maps and, to a lesser extent, on parcel maps through three principal means:

(1) Regulation of "design" and "improvement,"

(2) Specic authorizations such as the Quimby Act (park land), and

(3) The ability to disapprove or approve conditionally.

In 1986 the State Legislature approved AB 2926 (Chap. 887) which authorized school districts to charge development fees to fund the construction or reconstruction of schools. This new method of nancing came into immediate and widespread use.

It limits the maximum fees which may be collected under this and any other school fee authorization (adjustable for ination) to $1.50/square foot of residential development and $0.25/square foot of commercial or industrial space (Government Code section 65995).

When notied of a school facility exaction, a city or county must not issue a building permit to an affected development project until the school district has certied that the project has either complied with the board's resolution or is not subject to the exaction. (Government Code section 53080).

The School Facilities Act (Government Code section 65970) is another type of school fee mechanism. It authorizes overcrowded school districts to use fee revenues for new school facilities necessitated by residential development.

Exactions

CEQA

Fees

The districts, upon making written ndings of overcrowding and establishing a schedule of fees to pay for the facilities, must request that the local city council or board of supervisors adopt an ordinance imposing such fees. Once an ordinance is in place, fees are collected by the local government, placed in a separate account for the school district, and disbursed to the district each year.

The Legislature has declared the subject of development fees to nance school facilities to be a matter of statewide concern. Accordingly, the legislation described above occupies the eld of mandatory development fees for school construction to the exclusion of all other local ordinances. (Government Code section 65995). Furthermore, the fee nexus and accounting requirements of Government Code section 66000 et seq. apply to all school district exactions. The fee ceiling established under AB 2926 is the total amount of the fees which may be levied for school facilities.

As discussed in Chapter IV, the California Environmental Quality Act (CEQA), requires cities and counties to mitigate the signicant environmental effects of projects they approve or to make special ndings of overriding consideration (Public Resources Code Sections 21002 and 21081). In the past, cities and counties have mitigated adverse impacts on public facilities by negotiating with developers for needed improvements.

The Legislature limited this use of CEQA in 1982 by specifying that cities and counties may require these kinds of mitigation measures only if they have authority to do so independent of CEQA (Public Resources Code Section 21004). In addition, the Court of Appeal held in the case of Las Virgenes Homeowners Federation v. County of Los Angeles (1986) 177 Cal.App.3d 300, that CEQA does not require that a project's adverse impacts be completely avoided or reduced to absolute insignicance prior to approval.

Unlike taxes, which are levied to raise general revenues, impact fees are levied to nance a specic activity, facility, or service which confers a direct, identiable benet on those paying the fee. There are several sources of authority for imposing fees. The Subdivision Map Act, as explained above, authorizes a city or county to impose fees inlieu of dedications of land or improvements as a condition of subdivision approval. There are several limitations on the imposition of inlieu fees: (1) there must be an express or implied authorization for the item to be funded by the fee; (2) usually, there must be an implementing ordinance (Government Code Section 66411); and, (3) the fee must be reasonably related to the project being approved. The procedure for imposing fee or dedication requirements upon development projects is prescribed by Government Code Sections 66000 et seq.

The police power is the ultimate authority for requiring development and planning fees in general law cities (California Constitution, Article XI, Section 7). The municipal affairs power performs the same function for charter cities (California Constitution, Article XI, Section 5). The use of the police power as the basis for levying fees was upheld in Mills v. County of Trinity (1980) 108 Cal.App.3d 656, which concerned fees for processing subdivisions, zonings, and other land use applications, and in Trent Meredith, Inc. v. City of Oxnard (1981) 114 Cal.App.3d 317 and Candid v. Grossmont Union School District (1986) 39 Cal.3d 878, both of which addressed fees for interim school facilities. Government Code Section 55076 provides that a "special tax" does not include a fee that does not exceed the reasonable cost of providing the associated service or regulatory activity.

Local governments may charge certain types of fees at the time they approve a project or when they issue a building permit. Such charges include sewer and water connection fees authorized by Health and Safety Code Sections 5471 and 5474 and conrmed by Associated Home Builders of the Greater East Bay v. City of Livermore (1961) 56 Cal.2d 847.

They also include water and sewer standby charges as authorized by Health and Safety Code Sections 5471 and 5474, Government Code Section 38743, and Water Code Section 35475. In some instances, where authorized by local building ordinance, this may include fees for school facilities levied under the School Facilities Act ( Fontana Unied School District v. City of Rialto (1985) 173 Cal.App.3d 725).

Local agencies which impose fees on residential development for public improvements or facilities must defer collection until the date of nal inspection or the issuance of a certicate of occupancy, whichever occurs rst (Government Code Section 66007(a)). Fees may be collected before those times when: (1) they are to reimburse the local agency for previous public improvement or facility expenditures or, (2) they are funding an improvement program for which an account has been established, funds appropriated, and a construction schedule adopted prior to nal inspection (Government Code Section 66007(b)).

Government Code Section 66014 governs local fees for processing subdivision and parcel maps, rezonings, zoning variances, use permits, building inspections, planning services, and building permits. These fees may not exceed the estimated reasonable cost of providing the services. Fees charged in excess of this amount are subject to twothirds voter approval.

In addition, cities and counties may charge developers a prorated fee based upon the relative benet the developers receive from the adoption of specic plans (Government Code Section 65456). The fee may not exceed the estimated reasonable cost of preparing, adopting, and administering the specic plan.

Pursuant to the Urban Development Incentive Act of 1982, a city or county may require the sponsor of a "largescale urban development" project to pay the differences between the revenue generated by the development and actual costs of providing public services to the area (Health and Safety Code Section 56036).

In addition to regulatory charges, cities and counties can enact service or actual use charges to defray the capital and operating costs of services provided by publicly owned enterprises such as parking facilities, sewer and water service, refuse and rubbish collection, libraries, parks, and recreational facilities. Government Code Section 54344 authorizes the collection of charges for enterprises constructed with revenue bonds under the Revenue Bond Law of 1941. Government Code Section 5471 authorizes charges for sewer services; Government Code Section 50402, for parks and recreation facilities; and, Government Code Section 66796.2, for solid waste facilities.

Charges for services or actual use were upheld in Kennedy v. City of Ukiah (1978) 69 Cal.App.3d 545, and City of Glendale v. Trondsen (1957) 48 Cal.2d 93. In the latter case, the court upheld service charges for rubbish collection as a valid exercise of police power and charter authority even though the service was not used.

Lease-purchase agreements and sale/lease-back arrangements with private entities such as banks and leasing companies exemplify some of the more innovative forms of public nancing. These programs can be transacted without voter approval and hence avoid some of the administrative delay and costs associated with bond issues.

Collection Deferred

Processing Fees

User Fees

Lease-Purchase Sale/Lease-Back

Debt Advisory Commission

Privatization

To increase the marketability of lease-purchase agreements, banks typically break up the obligations into units known as Certicates of Participation and sell them to individual investors. Salelease back agreements, including "safe harbor" agreements, involve the transfer of important federal tax benets from the lessee to the lessor, but their use is currently limited by several legal considerations, particularly in general law cities.

In response to concern about the rising volume of local government bond issues and the nature and purpose of local bond issues, the Legislature created the California Debt Advisory Commission to oversee new local debt issues (Government Code Section 8855). Local governments must notify the Commission of all new bond issues (excluding 1911 and 1915 Act bonds) ten days before the bonds go on sale.

Recent years have seen a growth in the popularity of "privatization" (the use of private contractors or private ownership) to provide local services such as garbage collection, re protection, and street maintenance. Although it is not strictly a nancing measure, it is a strategy used to stretch limited public funds. Privatization has certain advantages: (1) local governments need not purchase and maintain specialized machinery, (2) personnel for specialized or seasonal tasks need not be maintained on salary, and (3) the costs to local governments of providing services may be reduced.

It also has disadvantages: (1) special skills are needed to establish and manage the contract with the private service provider, (2) quality control is beyond the direct control of the local government, and (3) if it is necessary to replace the contractor, local government may face a period of interrupted service.

STATE FUNDING

In addition to general state support of local government, the Legislature has created a broad range of categorical programs of grants and loans which local governments use to nance the implementation of their general plans. The following are examples of these programs:

Energy

Cogeneration Commercialization Development (Energy Commission)

Solar Energy and Energy Conservation Bank (Energy Commission)

Fuel Efcient Trafc Management (Energy Commission)

Geothermal Grant Program (Energy Commission)

Street Light Conservation Loans (Energy Commission)

Historic Preservation

Historic Preservation GrantsInAid Program (Ofce of Historic Preservation)

Housing

See the discussion under "Implementation and Funding Programs" in the housing element section of Chapter III of these guidelines.

Noise Mitigation

Community Noise Program (Caltrans)

School Noise Program (Caltrans)

Parks, Recreation, and Open Space

Agricultural Preservation Projects (Coastal Conservancy)

Boat Launching Facilities Development Grant (Department of Boating and Waterways)

Coastal and Bay Access Program (Coastal Conservancy)

Coastal Restoration Grants (Coastal Conservancy)

Environmental License Plate Fund (Resources Agency)

Harbors and Marinas Loan Program (Department of Boating and Waterways)

Land and Water Conservation Fund (Department of Parks and Recreation)

Land Trusts/Nonprot Organizations (Coastal Conservancy)

OffHighway Motor Vehicle Grant Program (Department of Parks and Recreation)

Parklands Act of 1980 (Department of Parks and Recreation)

Park and Recreational Facilities Act of 1984 (Department of Parks and Recreation)

Public Access Program (Department of Fish and Game)

Resource Enhancement (Coastal Conservancy)

RobertiZ'berg Urban OpenSpace and Recreation Program (Department of Parks and Recreation)

Urban Forestry Program (California Department of Forestry)

Urban Waterfront Restoration (Coastal Conservancy)

Wildlife Conservation Board Program (Department of Fish and Game)

Solid Waste Management

Recycling Grant Program (Integrated Waste Management Board)

Resource Recovery and Waste-to-Energy Grant Program (Integrated Waste Management Board)

Transportation (many of these programs are administered by Caltrans and Regional Transportation Planning Agencies (RTPAs))

Federal-Aid Highway Program (funded from the Highway Trust Fund), including FederalAid Primary, FederalAid Secondary, FederalAid Urban, and demonstration projects

Federal Public Transportation Program (funded from the General Fund as well as the Highway Trust Fund), including Section 8 Planning Assistance, Section 9 Operating and Capital Assistance, Section Specialized Transit Capital Assistance, and Section 16b2 18 Rural Public Transit

Airport Improvement Program

Petroleum Violation Escrow Account (administered by Caltrans for trafc signal timing)

State Highway Program, including state projects and matching funds (Caltrans)

State Transit Program, including Article XIX mass transit funds, Transit Capital Improve ments, and State Transit Assistance (Caltrans)

Aid to Airport Program (Caltrans)

Airport Loan Program (Caltrans)

Bicycle Lane Account (Caltrans)

Regional Planning subventions to RTPAs (Caltrans)

Ridesharing Program (Caltrans)

Sales Tax Allocation (Caltrans)

Gas Taxes (Caltrans)

Gasoline Sales Taxes (Caltrans)

Vehicle License Fees (Caltrans)

transportation financing alternatives

The federal government has a broad range of grant and loan programs available to local governments. One of the most important is the Department of Housing and Urban Development's (HUD) Community Development Block Grant Program, which may be used to fund urban renewal, housing, public facilities, and other similar projects. The Small Cities component of the Block Grant Program is administered in California by the Department of Housing and Community Development. For economically distressed cities, HUD operates the Urban Development Action Grant Program.

HUD is also a major source of funds for housing programs. For some examples of such programs, see the discussion under "Implementation and Funding Programs" in the housing element section of Chapter III of these guidelines.

Most rural development programs are administered by the U.S. Department of Agriculture's Farmers Home Administration (e.g., Community Facility Loans and Water and Waste Disposal Grants and Loans). The U.S. Department of Commerce's Economic Development Administration makes grants and loans to local governments for public works and economic development projects. The availability of these programs is subject to change.

Local ofcials can nd a complete list of established federal grant programs in the Catalog of Federal Domestic Assistance. The Catalog cross-references federal programs by a host of variables agency, functional classication, subject, eligible applicants, popular name, and authorizing legislation. To help grant applicants identify prospective sources of funds, the federal government created the Federal Assistance Programs Retrieval System (FAPRS), a computerized questionandanswer system listing all of the Catalog's programs. Local ofcials can use FAPRS, at minimal cost, by contacting:

L. Clair Christensen

University of California Cooperative Extension

ABS

University of California

Davis, California 95616

Telephone: 916/7523006

The following sections describe general categories and examples of measures to generate additional funds for transportation projects. This particular topic is one which commonly demands the attention of local government in today's environment of limited funding alternatives. For that reason, we are including the following information provided by Caltrans Division of Transportation Planning.

Distinctions are made between funds generated on a community wide basis and revenues from a specic development, between traditional methods of local nance and new private sector methods, and between fee payment requirements and infrastructure contributions.

These measures apply to the full range of multimodal transportation projects that are needed by local jurisdictions.

Local jurisdictions have a variety of taxes which they can impose based upon state enabling legislation and public acceptance. They are usually applied on a community wide basis (i.e., not restricted by geographic boundary) but may apply to a specic group such as employers, residents, employees, tourists, etc. Common examples include property taxes; sales taxes; and excise taxes on such things as motel use, tickets to entertainment events, or utilities. Employer/payroll taxes, personal income taxes, and other special taxes are also possibilities.

A countywide gas tax may be imposed by voter referendum under a 1981 change in California law. A proposition may be placed on the ballot if it is approved by the county board of supervisors and a majority of the municipal population. In addition, the county and a majority of the cities that encompass a majority of the municipal population must develop an agreement on how the funds are to be expended. Several counties have attempted, unsuccessfully, to adopt such a measure since 1981.

With voter approval, a county may impose an additional sales tax for transportation improvements. These laws usually establish a framework by specifying the entity to receive the funds, the types of agreements needed for expenditure, and the maximum level of tax that could be imposed. The county then takes the detailed proposition to the voters for approval. Sales taxes to nance transportation have been approved in Sacramento, San Francisco, Contra Costa, Alameda, San Benito, San Diego and other counties.

Cities in California may impose business license taxes (often based upon gross receipts or number of employees) since business activity and employment concentration affect trafc congestion. San Francisco has used this method to provide funds for operation of its municipal railway. A variation could be an employers' commute tax based on location and the numbers of employees commuting.

Special taxes may be imposed in a jurisdiction with a twothirds majority vote and expended on any specic public purpose. Local governments have a great deal of latitude in using these funds if a favorable vote is achieved. Cities and counties have used special taxes to fund a variety of improvements and services including streets and sidewalks.

Traditionally, user charges are vehiclebased fees for the benets received from transporta tion services or for the damage inicted upon a facility. They apply to a large percentage of the population. Typical examples include taxes on the price or quantity of fuel consumed, tolls, and transit fares.

Across the United States many state and local jurisdictions use toll revenues from highways, bridges, and tunnels to nance local transit as well as street and highway budgets. Revenue generated over time is usually adequate to cover debt service, other capital improvements and maintenance. Existing law, however, precludes use of tolls on facilities built with federal funds. Recent local interest in toll nancing has mainly been for commuter highways in fast growth areas with sufcient demand. Examples include toll roads in Dallas, Texas; Richmond, Virginia; and Tampa, Florida.

Revenue from parking stickers, meters, permits, and daily tickets can be substantial in urban areas. Increased fees can be used for a variety of local transportation programs.

Taxes

User Fees

Tolls

Parking

Development-Specific Fees

Employment or developmentspecic fees are assessments, charges, or taxes imposed by local governments on businesses and/or developers. The collected fees are put into a special fund to nance necessary transportation infrastructure improvements. Many variations and combinations of this concept exist, some of which are described below.

· Construction Tax

The City of Redding imposes a construction tax on all residential and nonresidential construction, reconstruction and modications. It is assessed per dwelling unit or per square foot of nonresidential space and it helps nance capital improvements, storm drainage, and electric service components. Developers may receive a credit for offsite road improvements under specic conditions.

· Transportation Impact Fees

These fees are similar to construction taxes but are based upon trafc projected to be generated by development and/or the cost estimates of public transportation facilities necessitated by development. Transportation impact fees are also known as "trafc impact mitigation fees," "system development charges" and "adequate public facilities fees."

In the Westchester area of Los Angeles, a one-time fee is being collected for each p.m. peak hour trip generated by new commercial and ofce development to cover areawide improve ments needed. In Thousand Oaks, trafc mitigation fees are required for signals, for the cost of paving adjacent arterials and for off-site improvements, all made necessary by the trafc resulting from new development. To offset development impacts on the local transit system, San Francisco charges a transit impact fee based on building square footage.

· Airspace Leasing

This technique recognizes the value of public rights-of-way in urban areas. A governmental agency may capitalize on that value by leasing to the private sector unoccupied space over, under, or within the right-of-way. This has been used for a variety of purposes including parks, parking lots, ofce buildings, restaurants, and public facilities.

· Special District Formation

Sometimes, citizens in various areas of California have found themselves in need of a particular governmental service. As a consequence, they have often formed local government entities known as "special districts." These districts have funded, developed, and maintained specic types of improvements and services, including transportation infrastructure. For example, in California there are districts for transit, bridges and highways, road maintenance, parking, and highway lighting.

· Special Benet Assessment (SBA)

Special benet assessment districts are established to collect revenue from those properties which directly benet from public facility improvements. As opposed to community-wide assessments, only the property owner that receives a special benet from the improvement pays a special assessment.

The assessments create a ow of income over time, based on a benet factor and applied to specic uses, which pay off the bonds or other methods of borrowing used to nance the capital improvements. These districts have commonly been used to nance streets, sidewalks, sewers, lights, and, in California, parking lots, transit stations, and pedestrian malls.

For example, the City of San Diego collects "facilities benet assessments" in designated planned areas based upon the direct or indirect impacts of development. The assessments are calculated in advance and are based on dwelling units or acres for commercial and industrial development. A nancing plan outlines methods and sources of funding for the needed improvements.

· Tax Increment Financing Districts

Tax Increment Financing (TIF) districts are another option. These can be established in areas which are expected to develop or where redevelopment is desirable. All new taxes received from new development above the normal tax base for the area are attributed to the infrastructure improvements made. These dedicated revenues are used to pay off the nancing instrument used to construct the improvements. This method has been used in 37 states for redevelopment, streets, sidewalks, water, sewers, parking and transit improve ments.

The city of Beaverton, Oregon established a TIF District in its downtown in 1972 for an urban renewal project. TIF funds were used to back bonds that nanced additional trafc lanes, improved bus stops, trafc signals and parkandride lots. By 1983 the assessed value of the 1.5 square mile area had doubled and the urban renewal agency was able to retire the debt early.

Private sector nancing of transportation facilities is becoming more and more common as traditional funding sources diminish in value, costs escalate, and areas experience accelerated growth. Many different options are open to local government, some of which are discussed below.

· Exactions and Dedications

These measures have been used for years as conditions of development approval and usually take the form of land and/or facilities. Terms are often specied by local ordinance depending on the type and size of development and may be imposed at various points of the development approval process. Exactions often include developer-constructed sidewalks, streets, lights, parks, and signals which are then dedicated to the public.

Exactions and dedications must be closely linked to the public need created by a given development in order to avoid characterization as an unconstitutional "taking" by inverse condemnation. In Nollan v. California Coastal Commission (1987) 107 S.Ct. 3141, the U.S. Supreme Court held that there is no taking if land use regulation "substantially advances legitimate state interests" and does not deny a property owner economically viable use of her land.

Consequently, local governments must forge a direct link or "nexus" between the dedication or exaction being imposed and the public interest being advanced (i.e., free owing trafc, safe roads, etc.). et seq. Government Code Section 66000, sets forth a statutorily mandated linking procedure.

The general plan is not a "magic bullet" that can always provide safety from takings claims. For example, the court in Rohn v. City of Visalia (1989) 214 Cal.App.3d 1463 overturned the city's street dedication requirement when the city failed to show that Rohn's proposed development would cause any increase in trafc levels.

The city argued that the dedication was supported by the Visalia general plan which called for realigning the street in front of the Rohn's property. However, the court could nd no evidence that development of the property would cause a burden on the road system necessitating a widening of the street. In order to avoid this result, a general plan should contain land use and trafc demand analyses that are sufciently detailed to support its exaction policies and dedication standards on a case-by-case basis.

Multi-jurisdictional entities that are regional in scope and address infrastructure needs beyond dened municipal boundaries may develop a new structure which allows previously precluded funding mechanisms to be used in a particular area or way. An example is the establishment of joint powers authorities in Orange County. They will collect developer fees and decide on transportation corridor nancing, design, and construction.

· Negotiations

This activity goes by several names such as "public/private partnerships," "development agreements," and "costsharing." As the labels imply, it embodies developing an agreement between the private and public sectors that splits responsibilities for the cost of infrastructure provision, operation and maintenance. This technique tends to be more exible and less bound by legal constraints than other measures.

Fort Collins, Colorado uses a land development guidance system which substitutes bargain ing between developers and city ofcials for strict zoning. Developers are challenged to meet the community's goals of mixed land use, a higher share of non-motorized commuting and total private nancing of new infrastructure to support new growth. Higher densities are allowed if located near employment centers and transit routes and if vanpool programs are instituted.

· Privatization

This could reduce or eliminate the need for public funds for transportation infrastructure if the prospect of prot exists. Privately owned and operated facilities (roads) and operations (transit) will play an increasingly important role in future infrastructure provision out of necessity. Private provision of transit services is becoming more common as it is connected to specic developments. In Denver, a group of developers and landowners formed a public improvement authority to build highway improvements in a specic corridor. The wholly privately nanced program will build regional street and trafc facilities including over passes, interchanges and signals. Other forms of this measure include Road Utility Districts and Transportation Corporations in Texas.

· Trip Reduction Measures

Individual developers and employers have designed and initiated such trafc mitigation programs as ridesharing, parking management, subscription bus service, internal bus circulation, shuttle buses, trafc ow improvements, exible work hours and bicycle facilities. In addition, recent trends show groups of developers, employers and businesses banding together in transportation management associations to address mutual trafc concerns in a specic area and setting up programs such as those mentioned above. Measures have been established in the cities of El Segundo, Pleasanton, and Berkeley (in cooperation with the University of California).

CONSISTENCY IN IMPLEMENTATION

The preceding sections of this chapter demonstrate how the wide array of available general plan implementation methods can serve to carry out planning policies. Some of the methods, like zoning, have existed for decades, while some of the others, such as transfer of development rights, are relatively new. In the past, such measures were seldom linked to the plans they theoretically were intended to carry out. In other words, a general plan's useful role in making decisions had been merely incidental or marginal, for the plan was regarded as an advisory document with more of an inspirational than legal effect. In fact, before 1970, the law stated that "no county or city shall be required to adopt a general plan prior to the enactment of a zoning ordinance."

In the late 1960s and early 1970s, many elected ofcials, planning professionals, legal observers, and citizens came to feel that if long-range comprehensive planning were to be useful and effective, a more direct link had to be forged between the general plan and the dayto-day actions of local government. They argued that daytoday local government decisions should not be made on an ad hoc, disjointed, or arbitrary basis, but should follow logically from and be consistent with the general plan. These arguments formed the basis for a newly emerging philosophy.

Stated more simply, the philosophy held that governments engaging in land use planning must base their ofcial regulatory land use and development controls on, or make them consistent with, such planning. This new philosophy came to be known as the consistency doctrine (Joseph F. DiMento, The Consistency Doctrine and the Limits of Planning ). Few other states recognize the consistency doctrine in their planning enabling laws, but California, at least, assumed early leadership by recognizing a key court of appeal decision in 1965 and by enacting laws based on the consistency doctrine in 1970 and 1971. This new general plan philosophy was further institutionalized through statutes requiring consistency of certain local actions with the general plan.

The Court of Appeal signaled the earliest indication of this emerging philosophy in California when it decided the case of O'Loane v. O'Rourke (1965) 231 Cal.App.2d 774, 782. This case best exemplied the new perception of the general plan's central role by describing the general plan as a "constitution" for all future development.

In 1970 the OpenSpace Lands Act marked the rst legislative signal of this movement (Government Code Section 65566). The Act, which remains practically unaltered since its original enactment, requires local agencies to ensure that openspace zoning is consistent with the open-space plan. Further, the Act requires local governments to prepare openspace plans before adopting required openspace zoning ordinances.

In 1971 the Legislature clearly established a new direction by making consistency with the general plan a determinative factor relative to subdivision approvals and zoning. Since that time, lawmakers have continued to add consistency provisions to California's planning and land use laws. Other statutes, while not mandating consistency, required ndings or a report on whether various local actions conform to the general plan. (Please refer to the chart on the following pages.)

Continued on page 211

Consistency Doctrine

Development Constitution

Consistency Legislation

Consistency Provisions In State Law And Legal Precedents

Agricultural Preserves

· Government Code Section 51234: requires that agricultural preserves established under the Williamson Act be consistent with the general plan.

· Government Code Section 51282: requires a city or county, when approving a Williamson Act contract cancellation, to make a nding that the proposed alternate use is consistent with the general plan.

Building and Housing Regulations

· Elysian Heights Residents Association, Inc. v. City of Los Angeles (1986) 182 Cal.App.3d 21: holds that state planning law does not require scrutiny of building permits for consistency with the general plan, even though a building permit must comply with a charter city's zoning ordinance. *

· Government Code 65567: provides that no building permit may by issued that is inconsistent with an applicable open-space element.

Capital Improvements

· Government Code Sections 65401 and 65402: require planning agencies to review and report on the consistency with the applicable general plan of proposed city, county, and special district capital projects, including land acquisition and disposal.

· Government Code Section 65103(c): requires planning agencies to review annually their city or county capital improvement programs and other local agencies' public works projects for consistency with the general plan.

· Friends of B Street v. City of Hayward (1980) 106 Cal.App.3d 988: interprets state law as requiring consistency of governmental capital facilities projects with the general plan.

Development Agreements

· Government Code Sections 65867.5: requires development agreements to be consistent with the general plan.

Housing Authority Projects

· Health and Safety Code Section 34326: declares that all housing projects undertaken by housing authorities are subject to local planning and zoning laws.

Integrated Waste Management

· Public Resources Code Section 41701: If a county determines that the existing capacity of a solid waste facility will be exhausted within 15 years or if the county desires additional capacity, then the countywide siting element of the county's hazardous waste manage ment plan must identify an area or areas, consistent with the applicable general plan, for the location of new solid waste transformation or disposal facilities or for the expansion of existing facilities.

· Public Resources Code Section 41702: An area is consistent with the city or county general plan if:

(1) The city or county has adopted a general plan.

(2) The area reserved for the new or expanded facility is located in, or coextensive with, a land use area designated or authorized by the applicable general plan for solid waste facilities.

(3) The adjacent or nearby land use authorized by the applicable general plan is compatible with the establishment or expansion of the solid waste facility.

· Public Resources Code Section 41703: Except as provided in subdivision (a) of Section 41710, any area or areas identied for the location of a new solid waste transformation or disposal facility shall be located in, coextensive with, or adjacent to a land use area authorized for a solid waste transformation or disposal facility in the applicable city or county general plan.

· Public Resources Code Section 41710(a): A county may tentatively reserve an area or areas for the location of a new or expanded solid waste transformation or disposal facility even though that reservation is inconsistent with the applicable city or county general plan. A reserved area is tentative until it is made consistent with the applicable general plan.

· Public Resources Code Section 41711: A tentatively reserved area shall be removed from the countywide siting element if a city or county fails or has failed to nd that the area is consistent with the general plan.

· Public Resources Code Section 41720: The countywide siting element submitted to the California Integrated Waste Management Board shall include a resolution form each affected city or the county stating that any areas identied for the location of a new or expanded solid waste transformation or disposal facility pursuant to Section 41701 is consistent with the applicable general plan.

Interim Classroom Facilities

· Government Code Section 65974(a)(5): species that when local governments obtain the dedication of land, the payment in-lieu thereof, or a combination of both, for interim elementary or high school classroom facilities, such facilities must be consistent with the general plan.

Large-Scale Urban Development Projects

· Health and Safety Code Section 56032: requires that comprehensive development plans for largescale urban development projects be consistent with the general plan.

Local Coastal Programs

· Public Resource Code Section 30513: requires the zoning ordinances of the Local Coastal Program to conform to the certied coastal land use plan (a portion of the general plan).

Low and Moderate Income Housing

· Government Code Section 65589.5(d): A city or county may disapprove a low or moderate-income housing project if the jurisdiction nds that the development is inconsistent with the general plan land use designation, as specied in any element of the plan.

Mineral Resources

· Public Resources Code Section 2763: requires that city and county land use decisions affecting areas with minerals of regional or statewide signicance be consistent with mineral resource management policies in the general plan.

On-Site Wastewater Disposal Zones

· Health and Safety Code Section 6965: requires a nding that the operation of an onsite wastewater disposal zone created under Health and Safety Code Sections 6950 et seq. will not result in land uses that are inconsistent with the applicable general plan.

Open-Space

· Government Code Section 65566: requires that acquisition, disposal, restriction, or regulation of openspace land by a city or county be consistent with the openspace element of the general plan.

Continued ¤

· Government Code Section 65567: prohibits the issuance of building permits, approval of subdivision maps, and adoption of openspace zoning ordinances that are inconsistent with the openspace element of the general plan.

· Government Code Section 65910: species that every city and county must adopt an open space zoning ordinance consistent with the open-space element of the general plan.

· Government Code Section 51084: requires cities and counties accepting or approving an openspace easement to make a nding that preservation of the openspace land is consistent with the general plan.

Park Dedications

· Government Code Section 66477: enables local governments to require as a condition of subdivision and parcel map approval the dedication of land or a payment of fees for parks and recreational purposes if the parks and recreational facilities are consistent with adopted general or specic plan policies and standards.

Parking Authority Projects

· Streets and Highway Code Section 32503: species that parking authorities, in planning and locating any parking facility, are "subject to the relationship of the facility to any ofcially adopted master plan or sections of such master plan for the development of the area in which the authority functions to the same extent as if it were a private entity."

Planning Commission Recommendations

· Government Code Section 65855: requires that the planning commission's written recommendation to the legislative body on the adoption or amendment of a zoning ordinance, include a report on the relationship of the proposed adoption or amendment to the general plan.

Project Review Under CEQA

· Title 14, California Code of Regulations, Section 15080 (Refer to CEQA Guidelines): requires examination of projects subject to the provisions of the California Environmen tal Quality Act for consistency with the general plan.

Redevelopment Plans

· Health and Safety Code Section 33331: requires every redevelopment plan to conform to the adopted general plan.

Reservations of Land Within Subdivisions

· Government Code Section 66479: species that reservations of land for parks, recre ational facilities, re stations, libraries, and other public uses within a subdivision must conform to the general plan.

Special Housing Programs

· Health and Safety Code Section 50689.5: species that housing and housing programs developed under Health and Safety Code Sections 50680 et seq. for the developmentally disabled, mentally disordered, and physically disabled must be consistent with the housing element of the general plan.

Specic Plans

· Government Code Section 65359: requires that a specic plan be reviewed and amended as necessary to make it consistent with the applicable general plan.

· Government Code Section 65454: species that a specic plan may not be adopted or amended unless the proposed plan is consistent with the general plan.

Street, Highway, and Service Easement Abandonments

· Streets and Highways Code Section 8313: species that prior to vacating a street, highway, or public service easement, the legislative body must consider the applicable general plan.

Subdivisions

· Government Code Sections 66473.5 and 66474: specify that ndings of consistency with the general plan are determinative in the approval or denial of a tentative subdivision or parcel map.

· Government Code Section 66474.61: requires that subdivision and parcel maps be denied in cities of more than 2,800,000 persons if they are not found to be consistent with the general plan.

· Government Code Section 66427.2: requires that condominium conversions be consis tent with the general plan if the plan contains denite objectives and policies directed to such conversions.

Transmission Lines

· Public Utilities Code Section 12808.5: requires cities and counties approving electrical transmission and distribution lines of municipal utility districts to make a nding concerning the consistency of the lines with the general plan.

Use Permits

· Neighborhood Action Group v. County of Calaveras ( 1984) 156 Cal.App.3d 1176, provides that use permits (but not exclusively such permits) must be consistent with the local general plan. While state statutes do not expressly require such consistency, it follows that such consistency is nevertheless required, since use permits are struck from the mold of local zoning, and zoning must conform to the adopted general plan.

Zoning

· Government Code Section 65860: requires that zoning ordinances in counties, general law cities, and charter cities with a population of over 2,000,000 be consistent with the general plan.

In order for zoning and other measures to comply with the consistency requirements, the general plan itself must rst be complete and adequate i.e., it must address all local relevant issues and it must be internally consistent. A nding of consistency with an inadequate general plan is a legal impossibility (adapted from 58 Ops.Cal.Atty.Gen. 21, 24 (1975) and Neighborhood Action Group v. County of Calaveras (1984) 156 Cal.App.3d 1176, 1184).

Even where an adequate general plan exists, a more complicated question remains: What constitutes consistency of a local action with the objectives, policies, general land uses, and programs in the general plan? Consistency, dened in these terms, is difcult to determine precisely. In practice, it is often easier to determine inconsistency than consistency.

Having reviewed court cases involving the question of consistency and conformity, the State Attorney General opined that, "Apparently, the term 'consistent with' is used interchange ably with 'conformity with.' The courts have held that the phrase 'consistent with' means 'agreement with; harmonious with.' Webster denes 'conformity with,' as meaning harmony, agreement when used with 'with.' The term 'conformity' means in harmony therewith or agreeable to" (See 58 Ops.Cal.Atty.Gen. 21, 25 (1975)).

Definition

General Rule

Zoning

Ordinance

Based on the wording of the law and various legal interpretations, a general rule for consistency determinations can be stated as follows:

An action, program, or project is consistent with the general plan if, considering all its aspects, it will further the objectives and policies of the general plan and not obstruct their attainment.

A 1987 court of appeal decision took another step toward dening consistency when it ruled that a city council's nding of a project's consistency with the general would be reversed only if, based on the evidence before the council, a reasonable person could not have reached the same conclusion. (No Oil, Inc. v. City of Los Angeles (1987) 196 Cal.App.3d 223, citing McMillan v. American General Finance Corp. (1976) 60 Cal.App.3d 175, 186)

The preceding table reveals that consistency requirements abound for many types of projects and land uses. So far, the best known consistency case law, legal opinions, and analytical techniques deal with the major areas of zoning, subdivision, and capital facilities.

This is a predictable circumstance, since local planning agencies use these three measures in everyday land use decision making. That is, almost all California jurisdictions have zoning, while all must have subdivision ordinances and capital facilities. Unfortunately, there persists a dearth of case law and techniques to analyze the consistency of other less frequently used types of implementation measures.

The following three sections explain the effects of statutes, legal opinions, and legal precedents concerning zoning consistency, subdivision consistency, and capital facilities consistency with the general plan. Also covered are methods used to determine zoning and subdivision consistency.

ZONING CONSISTENCY

In its simplest terms, the zoning consistency requirement mandates local governments to maintain their zoning in a manner consistent with their general plans. It applies to counties, general law cities, and charter cities with a population of more than two million (Government Code Section 65860). Charter cities are otherwise exempt from the zoning consistency requirement. Nevertheless, charter cities with populations under two million may choose to adopt by ordinance or charter any zoning ordinances deemed desirable to achieve consistency with the general plan (Government Code Sections 65803 and 65860).

Every zoning action, such as the adoption of new zoning ordinance text provisions or zoning ordinance map amendments, must be consistent with the plan. A zoning ordinance that is inconsistent with the general plan at the time it is enacted is "invalid when passed" ( Sierra Club v. Board of Supervisors (1981) 126 Cal.App.3d 698). By the same token, when a general plan amendment makes the zoning inconsistent, the zoning must be changed to reestablish consistency "within a reasonable time" (Government Code Section 65860[c]). A referen dum to rezone land must also maintain general plan consistency ( deBottari v. City of Norco (1985) 171 Cal.App.3d 1204).

However, this does not mean that the general plan should be revised haphazardly in order to conform to zoning changes. Doing so would conict with the view that the general plan comprises the apex of the regulatory hierarchy and would "destroy the general plan as a tool for the comprehensive development of the community as a whole" ( deBottari v. City of Norco, supra).

State law does not prescribe what constitutes "a reasonable time" for reconciling the zoning ordinance with the general plan. OPR recommends that when possible, general plan amendments and necessary related zone changes be heard concurrently (Government Code Section 65862). When concurrent hearings are not feasible, OPR recommends the following maximum time periods. For minor general plan amendments, those involving a relatively small area, six months should provide ample time for processing the necessary environmental analysis and rezoning.

For extensive amendments to the general plan, such as a revision which results in the inconsistency of large areas, rezoning will probably be more complex and may require more time. In such cases, two years is a reasonable limit, as this is the maximum period for which interim zoning can be imposed under Government Code Section 65858. Where the general plan has been revised substantially, the entire zoning scheme should be reviewed for consistency and amended as necessary.

In at least two cases, the California Court of Appeal has held that charter cities, except for Los Angeles, have no statutory responsibility to maintain consistency between their general plans and zoning ordinances. At the same time, the court in Verdugo Woodlands Homeowners and Residents Association v. City of Glendale (1986) 179 Cal.App.3d 696, 704 was generally unsympathetic to the city's position and despite the statutory exemption, offered an argument for maintaining consistency within charter cities. In an earlier decision, the court in City of Del Mar v. City of San Diego (1982) 133 Cal.App.3d 401, stated the point forcefully:

While the trial court was correct in concluding that charter cities such as San Diego are statutorily exempt from the technical zoning consistency requirement con tained in Government Code Section 65860, Del Mar persuasively argues that a city's general plan may be viewed in many ways as the city's articulated perceptions of what constitutes the locale's 'general welfare.' Thus, to the extent that a city approves a zoning ordinance which is inconsistent with the city's general plan, the inconsistency must at least give rise to a presumption that the zoning ordinance does not reasonably relate to the community's general welfare and, therefore constitutes an abuse of the city's police power.

In addition to the debate over statutory exemption from the zoning consistency requirement, much debate has ensued over the consistency requirement's applicability to conditional use permits (CUPs) and variances, as well. The most recent case to address this question, Neighborhood Action Group v. Calaveras County (1984) 156 Cal.App.3d 1176 supports the consistency doctrine with specic regard to use permits. Although use permits are not expressly subject to the zoning consistency requirements of state law, it follows logically that because use permits are part of the zoning ordinance, and because the zoning ordinance must be consistent with the plan, "the validity of the permit process derives from compliance with (the) hierarchy of planning laws" (supra p. 1184). This case stands for the proposition that a complete general plan is necessary for the proper evaluation of a use permit.

Reasonable Time

Charter Cities

Use Permits

Correlation of Zoning with Planning

Zoning Map and General Plan Diagram

Timing

Assessing and Achieving Zoning Consistency

Consistency in general plan implementation can be broken down into three aspects: (1) uses and standards, (2) spatial patterns, and (3) timing.

The local agency's general plan and zoning ordinance are parallel documents containing text and maps that specify development standards and the proposed location of uses for the community.

The development standards and uses specied for all land use categories in the zoning ordinance density, lot size, height, and the like must all be consistent with the development standards and uses specied in the general plan's text and diagram of proposed land use. This has several implications.

First, the total zoning scheme with its range of zoning districts and their associated development standards or regulations must be broad enough to implement the general plan. If a general plan contains three residential land use designations, each with its own residential intensity and density standard, then the zoning ordinance must have at least as many zoning districts with appropriate standards consistent with the three general plan designations. Similarly, if the general plan identies seismic hazard areas and calls for zoning measures to implement safety policies, the zoning ordinance must contain appropriate provisions, such as a hazard overlay zone or development standards applicable in such hazard areas.

Second, when a new element or major revision to a general plan is adopted, the total zoning scheme must be thoroughly reviewed and amended as necessary to ensure that it is adequate to carry out the new element or revisions. That is, local agencies should guarantee that new general plan policies are brought to fruition by making sure the zoning ordinance contains corresponding and consistent regulations.

Third, when rezoning occurs, the newly adopted zoning must be appropriate and consistent with the general plan regarding the allowable uses and development standards for the area in question. More than one zoning classication may be consistent with any one of the general plan's land use categories. For example, R-1 and PUD may both be consistent zoning classications for a lowdensity residential category in the plan. The classication to be applied depends on additional factors that decision makers must consider.

Both the zoning map and the general plan diagram of proposed land use should reect a similar pattern of land use distribution. However, the maps need not be identical if the general plan text provides for exibility of interpretation. For example, a land use diagram may designate an area for residential development while the zoning map may show the same area as predominantly residential, with a few pockets of commercial use. Despite the residential designation, the commercial zoning could be found consistent with the general plan if the plan species policies and standards for neighborhood commercial development within residential areas and if the commercial zoning did not violate other general plan policies regarding residential areas.

Timing of development is closely linked to the question of consistency of spatial patterns. A general plan is long-term, while zoning responds to shorterterm needs and conditions. Therefore, in many cases zoning will only gradually fulll the prescriptions of the general plan. Timing may be particularly important in rural areas designated for future urbanization. If the general plan contains policies regarding orderly development and compact urban growth, rezoning a large area from a lowintensity use (e.g., agriculture) to a more intensive one (e.g., residential) before urban services are available would be inconsistent with the general plan. Similar service criteria may also be applied in urban areas to ensure that development does not outstrip available services ( Mira Development Corp. v. City of San Diego (1988) 205 Cal.App.3d 1201).

Conversely, if general plan policies promote highintensity development in an area, but the jurisdiction delays rezoning for highintensity use and instead permits lowintensity uses, the general plan's policies may be frustrated and an inconsistency with the general plan created. Since timing can be an important but problematic issue, general plans should provide clear guidance for the pace of future development, perhaps by using veyear increments or by establishing a set of conditions to be met before consistent zoning would be considered timely.

Local governments have devised a number of ways to evaluate and achieve zoning consis tency. A fairly common approach is to employ a matrix comparing the general plan's land use categories and associated development standards with the zoning districts and their corresponding zoning ordinance development standards. Matrices are used to assess the consistency of uses and standards in the entire zoning ordinance. They can also be used as guides to determine the appropriate zoning for an area, based on the general plan's designation. To indicate the degree of zoning consistency with the plan, many matrices feature categories ranging from "highly compatible" to "clearly incompatible." An interme diate category, "conditionally compatible," reects zoning that by itself is not compatible, but could become compatible if measures are imposed to reduce or eliminate potential conicts, as in conditional use permits.

Few zoning compatibility matrices are exactly alike, for their very designs reect a variety of local approaches toward analyzing the relationships between the general plan's use designa tions and zoning ordinance provisions, as well as local preferences and philosophical bents. The fact that several types of matrices exist supports the notion that there is more than one way to design an acceptable matrix. The following page shows a simplied hypothetical matrix intended to illustrate how one can be organized. Because it does not contain all the possible general plan land use designations or zoning districts for all of California's diverse jurisdictions, it may be modied to satisfy the range of local land use characteristics, the local general plan's structure, and local approaches toward achieving consistency.

The matrix approach however, has its limitations. By itself, a matrix cannot answer questions about the zoning's compatibility with the objectives, policies, and programs of the general plan, nor can it answer questions about timing. A number of local governments use a checklist to evaluate the consistency of individual zoning proposals. The checklist repeats the major goals and policies of the general plan and rate the degree to which the proposed zoning conforms to each of them (e.g., "furthers," "deters," "no effect"). A point system which rates development projects by their level of consistency with the goals, objectives, and policies of the general plan is a similar approach.

Performance zoning, a relatively recent innovation in zoning practice, may be an effective approach to achieving zoning consistency, but it has not been used widely in California. In 1986, about four cities and one county were using performance zoning in conjunction with their zoning ordinance. Performance zoning rests on the assumption that the appropriate uses in a particular area cannot always be dened by a predetermined list of permitted uses.

Matrix

Performance Zoning

HYPOTHETICAL GENERAL PLAN / ZONING COMPATIBILITY MATRIX

* Units per net acre

s Zones that are compatible with general plan designation

Zones that the city could find compatible under specified circumstances, but that generally are not compatible

M Zones that are not compatible with general plan designation

N formulation of a new zoning district is recommended

consistency in implementation

Rather, an appropriate use is determined by the characteristics of the site and its environs and whether or not the use meets specic performance standards.

SUBDIVISION CONSISTENCY

Subdivision Map Consistency

Government Code Section 66473.5 requires ndings that a proposed subdivision (including parcel maps of four or fewer lots) is consistent with the general plan and any applicable specic plan. These ndings can only be made when the local agency has ofcially adopted a general plan and the proposed subdivision or land use is "compatible with the objectives, policies, general land uses and programs specied in such a plan."

Furthermore, Government Code Sections 66474 and 66474.61 require the city or county to deny approval of a tentative map if it makes either of the following ndings: (a) That the proposed map is not consistent with applicable general and specic plans; or, (b) That the design or improvement of the proposed subdivision is not consistent with applicable general and specic plans.

The chart on the following page demonstrates but one example of how subdivision consistency may be evaluated.

Rental Conversion Consistency

Current laws governing conversions are somewhat confusing. Unlike divisions of land, where general plan consistency ndings must be made in all cases, conversions are not contingent upon ndings of consistency with the general plan unless the community's general plan or specic plan contains denite objectives and policies specically directed to the conversion of buildings into condominiums or stock cooperatives (Government Code Section 66427.2).

The consistency requirement can be used to lessen the problems of displacement and the loss of rental stock by attaching conditions on approvals which support policies in the housing element. For example, conversions can be prohibited if the vacancy rate in rentals falls below a critical level or be made subject to approval by a majority of tenants (58 Ops.Cal.Atty.Gen. 41 (1975)).

CAPITAL FACILITIES CONSISTENCY

Statutory and case law requires that most local public works projects conform to the general plan. California courts have held that a jurisdiction's decisions about its own capital facilities must be consistent with its general plan, just as private projects must be ( Friends of "B" Street v. City of Hayward (1980) 106 Cal.App.3d 988).

According to statutory law, most public works projects undertaken by special districts, including school districts, must be consistent with local zoning, which in turn must be consistent with the general plan (Government Code Sections 53090 et seq.). A special district governing board may render a zoning ordinance inapplicable to a project if it makes a nding after a public hearing that there is no feasible alternative to the project (Government Code Section 53096).

A Checklist For Subdivision Consistency With The General Plan

To establish whether a proposed subdivision is consistent with the general plan, planning agencies often prepare checklists designed to evaluate how each of the subdivision's aspects conforms to ofcial land use policy. The following checklist is merely an example and is not intended to serve as a model for all communities, because local conditions and concerns will vary greatly from one region to another. The following questions should be answered in the afrmative:

· Land Use

Do land uses proposed in conjunction with the subdivision conform to the general plan's land use designations?

· Density and Intensity

Are the proposed lot sizes appropriate for the uses prescribed for the area by the general plan and consistent with the applicable general plan standards for population density and building intensity? This question implies more than consistency with the general plan diagram: the subdivision must also be consistent with the plan's written policies and standards regarding uses, density, and intensity.

· On-Site Improvements

Does the subdivision provide adequate onsite improvements consistent with the general plan, including street design, drainage and sanitary facilities, and easements?

· OffSite Improvements

Does the subdivision include provisions for offsite improvements or the payment of fees for offsite improvements consistent with the general plan, including temporary school facilities, road and bridge improvements, parks, and sewers?

· Circulation

Does the map respond to projected trafc levels indicated in the circulation element? Does the design of the subdivision take into account thoroughfares identied in the circulation element, like collectors, major arterials, expressways, etc.?

Does the subdivision design effectively correlate circulation element policies with those of the land use element, pursuant to the court's decision in Concerned Citizens of Calaveras County v. Board of Supervisors (1985) 166 Cal.App.3d 90?

· Environmentally Sensitive Areas

Is the subdivision designed to accommodate and protect environmentally sensitive areas identied in the general plan? Environmentally sensitive areas are ones susceptible to ooding and to geologic or seismic hazards and res, areas of special biological signicance, areas of special cultural signicance, such as archaeological sites, and the like.

· Timing

Does the subdivision conform to the schedule for growth or phasing set forth in the general plan?

· Other General Plan Provisions

Does the subdivision's design take into account noise attenuation standards set forth in the noise element?

Does the subdivision's design conform to the openspace element's policies and designations?

Is the subdivision consistent with all other general plan policies pertaining to subdivisions, possibly including policies for a mixture of housing types, lot orientation for solar heating, limitations on congestion of public facilities, and the like?

A State entities are an exception to the consistency rule. In determining that the Southern California Rapid Transit District (SCRTD) is a self-governed state entity under Public Utilities Code Section 30100 and not a local agency under Government Code Sections 53090 and 53091, the California Court of Appeals found that SCRTD is limited only by the Public Utilities Commission's regulations (Rapid Transit Advocates, Inc. v. Southern California Rapid Transit District (1986) 185 Cal.App.3d 996). The district's status as a state entity makes it a regional governmental body with statewide concerns. SCRTD's Metro Rail project, the proposed Los Angeles subway system, was not required to be consistent with city or county general plans (Rapid Transit Advocates, Inc ., supra).

The housing element requirement also stresses the role of capital facilities in ensuring the availability of adequate housing sites. The implementation program of the housing element must: "Identify adequate sites which will be made available through appropriate zoning and development standards and with public services and facilities needed to facilitate and encourage the development of a variety of types of housing for all income levels . . . ." (Government Code Section 65583(c)).

In addition to the state requirements, many federal grant programs now require or encourage the federally assisted capital project consistency with local, regional, and state plans, including the Clean Air Act, the Water Pollution Control Act Amendments, the Housing and Community Development Act of 1974, the Public Works and Economic Development Act of 1976, and the National Historic Preservation Act of 1966.

ENFORCEMENT

The California Constitution provides cities and counties with broad authority to make and enforce all local police, sanitary and other ordinances and regulations not in conict with general laws (Article XI, Section 7, California Constitution). Statutory law has also given cities and counties exibility in how they implement and in turn enforce their general plans. This section reviews enforcement through court actions and local enforcement procedures.

With regard to the general plan itself, any resident, property owner, or other aggrieved party, including a public agency, may sue to enforce the requirements for the adoption of an adequate general plan (58 Ops.Cal.Atty.Gen. 21 (1975)). The same is true for zoning consistency with the general plan (Government Code Section 65860(b)), and for subdivi sions (Government Code Section 66499.33). As the state's chief law enforcement ofcer, the Attorney General may do the same (Government Code Section 12606 and California Constitution Article V, Section 13). Additionally, persons living outside a city have standing to sue if the city's zoning practices exclude them from residing in the city or raised their housing costs outside the city by adversely affecting the regional housing market ( Stocks v. City of Irvine (1981) 114 Cal.App.3d 520).

When requested by a plaintiff, the courts have various remedies they may impose for failure to have a complete and adequate general plan or for inconsistency of zoning and subdivision actions and public works projects (Government Code Sections 65750 et seq.). The rst is a writ of mandate to compel a local government to adopt a legally adequate general plan. In addition to a writ of mandate, the courts have general authority to issue an injunction to limit approvals of additional subdivision and parcel maps, rezonings, public works projects, or (under limited circumstances) the issuance of building permits, pending adoption of a complete and adequate general plan (58 Ops.Cal.Atty.Gen. 21 (1975), Friends of "B" Street v. City of Hayward (1980) 106 Cal.App.3d 988, Camp v. Mendocino (1981) 123 Cal.App.3d 334).

Where the courts nd zoning, subdivision actions or public works projects to be inconsistent with the general plan, they may set aside such actions or projects. Under certain circum stances, the court may institute any of these forms of relief prior to a judicial determination of a general plan's inadequacy (Government Code Section 65757). These provisions, however, do not limit the court's authority to impose any other appropriate remedies.

As a policy document the general plan does not have regulatory power in itself. However, local agencies may enforce its provisions through its implementation measures. Although other methods to implement a general plan exist this section focuses on the major implementation measures zoning and subdivision regulations.

A community's zoning ordinance species the powers and duties of the zoning enforcement ofcer and the penalties for violations of the ordinance. A zoning enforcement ofcer is responsible for carrying out the ordinance's provisions. In addition to considering the issuance of permits, the zoning enforcement ofcer makes periodic checks for zoning ordinance violations, initiates court action to prevent or halt violations, and keeps records of individual cases. In some cities the zoning enforcement ofcer may be the local building inspector whose duties often include issuing building permits and making inspections under the building code. Other cities place zoning enforcement under the jurisdiction of the planning department or within a separate zoning inspection department.

Various means of discovering zoning ordinance violations exist. The most common is through complaints of neighboring property owners. Violations are also discovered as a result of real property conveyances, business license applications, state permit referrals and through the monitoring of existing land uses. Typical penalties include: nes or imprisonment or both for each day in which a violation continues; an injunction against the violator forbidding continuance of a violation; or a mandatory injunction ordering the removal of an illegal structure. For minor offences, such as sign violations, some cities use an infraction procedure whereby certain local ofcials are authorized to issue citations similar to trafc tickets.

Subdivision ordinance violations may be discovered by reviewing changes in assessor's maps or monitoring deed recordations. Either method may provide clues to the presence of illegal subdivisions. Government Code Section 66499.31 species that violations of the Subdivi sion Map Act are punishable as misdemeanors (i.e., imprisonment in county jail for no more than six months, a ne not exceeding $1,000, or both).

If a city wishes to avoid judicial enforcement it may withhold necessary permits and approvals to develop illegally divided property after making a nding that development is contrary to the public health or safety (Government Code Section 66499.34). Once a city has knowledge that property has been illegally divided, it must process a notice of violation pursuant to Government Code Section 66499.36. This will cloud the title and possibly encourage compliance.